[Cite as State v. Thacker, 2015-Ohio-4214.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 14CA62 : DONOVAN IAN THACKER : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2014 CR 0186 D
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 7, 2015
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
BAMBI COUCH-PAGE JOHN C. O'DONNELL, III RICHLAND CO. PROSECUTOR 10 West Newlon Place LILLIAN R. SHUN Mansfield, OH 44902 38 South Park St. Mansfield, OH 44902 Richland County, Case No. 14CA62 2
Delaney, J.
{¶1} Appellant Donovan Ian Thacker appeals from the judgment entry of
conviction and sentence of the Richland County Court of Common Pleas.
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
The Evidence at Trial
{¶2} Appellant, 24, a convicted felon,1 met Jennifer Bowman, 32,
through her job at Volunteers of America when he was released from prison into
the halfway-house program. Appellant and Bowman began to date in late
October 2013 immediately upon appellant's release and appellant started
"hanging around" Bowman's house frequently.2 Bowman had four minor
children: W.P., K.P., B.B., and A.B. At the time of these events, W.P. was 15
and his sister K.P. was 12. B.B. was 8 and A.P. was 3. Appellant babysat the
children while Bowman worked.
{¶3} On February 6, 2014, around 6:00 p.m., appellant was at
Bowman's house and as had become their habit, the couple drank beer and
tequila. Also present was another adult named Jeff Losey and Losey's girlfriend.
Losey eventually passed out in the living room, drunk, and his girlfriend left.
Appellant offered W.P. a shot of tequila and Bowman did not object. W.P. spit
1 Appellant has felony convictions for theft from an elderly person, misuse of credit cards, and felony domestic violence. Appellant also has misdemeanor O.V.I. convictions. He acknowledged his criminal activity arises from his alcoholism, which he was in treatment for at Volunteers of America when he met Bowman. 2 Bowman's supervisor confronted her about dating someone from the program
and told her if the relationship continued she would be fired. Bowman quit and did not work again during the pendency of this case. Richland County, Case No. 14CA62 3
out the tequila but remained in the room, sitting on the couch. W.P.'s siblings
played in another room. W.P. observed appellant whisper something in his
mother's ear; appellant then approached W.P. and said he wanted to speak to
him upstairs.
{¶4} W.P. assumed appellant wanted to reprimand him because W.P.
"had an attitude" earlier that day about washing dishes.
{¶5} W.P. testified he and appellant had a good relationship up to this
point. He first met appellant when his mother and stepfather were in the process
of separating. As his mother and appellant began to date, W.P. liked appellant;
appellant helped the family with Christmas, bought things for the kids, and talked
W.P.'s mom into letting him get his ears pierced. On this day, W.P. headed
upstairs with appellant behind him.
{¶6} W.P. was surprised when appellant led him into his brother's
bedroom and closed and locked the door.3 W.P. became alarmed when
appellant approached him and became uncomfortably close to him. W.P.
testified appellant tried to kiss him and W.P. resisted, turning his head. Appellant
forced W.P. onto the bed, held him down, removed his pants, and forcibly
sexually assaulted him. W.P. described oral and anal penetration.
{¶7} During the assault, W.P. cried and yelled for his brother and
sisters. Music was playing loudly downstairs, however. Finally K.P. and B.B.
knocked on the bedroom door for about 20 seconds, causing appellant to stop
3 B.B.'s room has a lock on the door but W.P.'s room does not. Richland County, Case No. 14CA62 4
the assault, pull his pants on, and tell W.P. to get dressed. Appellant left the
room and went back downstairs.
{¶8} K.P. asked W.P. what was wrong and he did not reply; he ran into
the bathroom where he threw up and took a long shower because he felt "dirty
and nasty." W.P. cried in the shower and wondered whether he should tell his
mom while appellant was still in the house. When he came out of the shower, he
went into K.P.'s room and told her appellant raped him. K.P. was angry and
demanded they tell their mother immediately, but W.P. urged her not to while
appellant was still in the house. W.P. spent that night in K.P.'s bedroom because
he was afraid.
{¶9} Early the next morning, Bowman briefly left the house. Upon her
return, W.P. told her appellant raped him. W.P. testified his mother became
angry and ran from the room. About 30 minutes later, she came back into the
room and told W.P. she didn't believe him because appellant was "not that type
of guy." She also told him not to tell anyone. W.P. was devastated and felt he
made a mistake in telling his mother what happened.4
{¶10} Later that day, W.P. contacted his friend J.S. on Facebook and told
her what happened. He told J.S. he didn't want to stay at his house. J.S. and
her mother, Tiffany Reuer, drove to the house and picked W.P. up.
{¶11} Tiffany Reuer is an L.P.N. and a mandated child abuse reporter.
J.S. told her what happened to W.P. When W.P. got into their car, he started
4 At trial, Bowman testified she never told W.P. she didn't believe him, although he "may have gotten that feeling" from her failure to take action and her feeling that she "didn't want it to be true." Bowman admitted at trial she initially lied to investigators to protect appellant. Richland County, Case No. 14CA62 5
crying. Reuer talked to him and explained he needed to disclose what happened
and to go to the hospital. At first W.P. resisted but then was willing to go
because he was in pain; Reuer testified W.P. was visibly uncomfortable sitting.
W.P. testified he was bleeding and was afraid something was seriously wrong.
{¶12} Reuer first took W.P. to his father's house to tell him what
happened and to give his father the opportunity to seek help. The father had no
vehicle, however, and asked Reuer to take W.P. to the hospital. Reuer took
W.P. to MedCentral in Mansfield.
{¶13} A Sexual Abuse Nurse Examiner (SANE) nurse examined W.P. on
February 8 and documented physical evidence of the rape. W.P. had physical
injuries including bruising to his arm and abrasions, redness, and swelling to his
rectum consistent with sexual assault. The history of the assault reported by
W.P. was consistent with the injuries observed. The SANE nurse testified the
injuries could not have been caused by diarrhea or bowel movements. The
abrasions and tears were consistent with penetration. The nurse did not find
blood during the exam but there was blood in W.P.'s underwear. In the time
since the rape, W.P. had used the bathroom, showered, vomited, brushed his
teeth, and changed clothes repeatedly. The nurse testified showering could
wash away even internal D.N.A. evidence within that time period.
{¶14} From the hospital, W.P. went to the Mansfield Police Department
and provided a statement to investigators. Police went to the residence and
collected a camouflage blanket from B.B.'s bed. No other physical evidence was
collected from the residence although the bedroom was photographed. The rape Richland County, Case No. 14CA62 6
kit and blanket tested negative for the presence of semen so no D.N.A. testing
was performed.
{¶15} Children's Services launched an investigation as well. Appellant
was forbidden from having any contact at all with the children. W.P. was placed
in the temporary custody of his father. Bowman's mother lived at the residence
on a temporary basis to ensure Bowman was appropriate with the other children.
{¶16} In the meantime, Bowman told appellant everything investigators
revealed about W.P.'s injuries and statements. Appellant was still on probation
and reported to his probation officer, who placed him in custody for a probation
violation related to the alcohol consumption. While appellant was in custody,
detectives interviewed him and he denied raping W.P. Appellant said his
experience in prison was child sex offenders are not treated well. He also denied
drinking at Bowman's house.
{¶17} Bowman continued to communicate with appellant while he was in
jail. They wrote, visited, or talked by phone every day. Bowman also had
contact with appellant's mother and they discussed explanations for W.P.'s
injuries, including a virus the family experienced in the weeks leading up to the
rape which had caused diarrhea. Appellant and Bowman discussed an escape
plan in which appellant would fake an illness in order to be transported to the
hospital from which Bowman would help him escape. One of the letters they
exchanged contained a hand-drawn map of the hospital. Bowman continually
expressed her love and support for appellant. Richland County, Case No. 14CA62 7
{¶18} In the weeks before the trial, the prosecutor's office presented
Bowman with evidence appellant had been corresponding with another woman
from jail as well. Bowman ultimately stopped supporting appellant and her
contact with him ceased. At trial, Bowman acknowledged she first supported
appellant over her son, but said over time she thought about appellant's lies and
manipulation and how long he had been upstairs with W.P. that night. Bowman
denied her changing attitude had anything to do with the pending dependency
and abuse case against her in family court through which she was required to
comply with a case plan.
{¶19} W.P.'s father testified that since the rape, W.P. has been in
counseling and takes medication for anxiety and depression. In the weeks and
months after the rape, W.P. wakes up from nightmares screaming.
{¶20} Appellant testified on his own behalf at trial. He acknowledged his
felony record and his alcoholism. He denied insinuating himself into Bowman's
family over a very short period of time and denied singling out W.P. and
grooming him for sexual abuse. He also denied raping W.P., stating he went
upstairs with W.P. that night and they talked about various issues W.P. was
having. Appellant said he was drunk and "lectured" W.P. which may have made
him appear upset when K.P. observed them in B.B.'s bedroom. Appellant
claimed that he couldn't remember what he said when Bowman first asked him
whether he raped W.P. other than to say "absolutely not."
{¶21} Bowman was recalled by appellee upon rebuttal and testified that
when she first confronted appellant with the rape accusation, he said W.P. "came Richland County, Case No. 14CA62 8
on to him" but nothing happened. She also testified to the timeline of the
diarrhea virus. W.P. also testified upon rebuttal and said he did have diarrhea in
February but it did not cause bleeding; he did not have a habit of spending the
night in K.P.'s room; and he had no problems with appellant in general prior to
the rape.
Indictment, Conviction, and Sentence
{¶22} Appellant was charged by indictment with one count of forcible rape
pursuant to R.C. 2907.02(A)(2) [Count I]; one count of kidnapping pursuant to
R.C. 2905.01(A)(4) [Count II]; and one count of unlawful sexual conduct with a
minor pursuant to R.C. 2907.04(A)(1) [Count III]. Appellant entered pleas of not
guilty and the case proceeded to trial by jury. Appellant was found guilty as
charged. Counts II and III merged with Count I and the trial court sentenced
appellant to a prison term of 11 years.5
{¶23} Appellant raises four assignments of error:
ASSIGNMENTS OF ERROR
{¶24} "I. THE TRIAL COURT ERRED TO DEFENDANT/APPELLANT'S
PREJUDICE BY REFUSING TO ADMIT TESTIMONY OF VICTIM'S SEXUAL
PREFERENCE OR ORIENTATION."
{¶25} "II. THE TRIAL COURT COMMITTED PLAIN ERROR IN
ALLOWING EXTRANEOUS EVIDENCE IN REBUTTAL TESTIMONY BY TWO
STATE'S WITNESSES."
5Appellant was also found guilty of a probation violation and sentenced to a consecutive 18-month term on that offense. Richland County, Case No. 14CA62 9
{¶26} "III. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL IN VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION."
{¶27} "IV. THE COURT ERRED IN SENTENCING DEFENDANT TO
THE MAXIMUM SENTENCE."
ANALYSIS
I.
{¶28} In his first assignment of error, appellant argues the trial court
should have allowed evidence of the victim's "sexual preference or orientation"
and also summarily argues that purported evidence of the victim's sexual activity
would have been admissible. We disagree.
{¶29} The admission or exclusion of relevant evidence is a matter left to
the sound discretion of the trial court. Absent an abuse of discretion resulting in
material prejudice to the defendant, a reviewing court should be reluctant to
interfere with a trial court’s decision in this regard. State v. Hymore, 9 Ohio St.2d
122, 128, 224 N.E.2d 126 (1967).
{¶30} Appellant's argument here is premised upon a mischaracterization
of the record. Appellant argues "Defendant/Appellant's Counsel wanted to admit
testimony that the victim had told Defendant/Appellant that he liked to have
homosexual sex." (Brief, 4). No such statement or conversation was in
evidence. In fact, the record reveals the proffered evidence in the pretrial
conference consisted of the following: Richland County, Case No. 14CA62 10
THE COURT: We have a motion in limine. The prosecutor has
asked that the defendant be prohibited from bringing in other
evidence of the victim's sexual activity.
[Defense counsel]; you think you have appropriate evidence
to bring in. What evidence do you intend to offer of the victim's
sexual--
[DEFENSE COUNSEL]: There is no direct evidence of sexual
activity before or after the incident. There is a lot of evidence
regarding the sexual orientation of the boy in the months leading up
to the offense, there was a conflict with that, it was a topic of
discussion with his mother, with [appellant] himself and others as
well.
There is evidence he is troubled. He cuts himself, there are
issues going on in his life, including his sexual orientation. The
testimony is he was bullied at school.
THE COURT: How is that relevant to this case?
[DEFENSE COUNSEL]: Because it shows an animus for--part of
our defense is the relationship between his mother and [appellant]
was a source of agitation for him, a source of animosity.
THE COURT: How is that a defense for your client?
[DEFENSE COUNSEL]: It gives him reason for motivation, gives
him a reason to come up with a story to get him out of the house. Richland County, Case No. 14CA62 11
THE COURT: He's lying about your client to get away from his
mother?
[DEFENSE COUNSEL]: To get my client out of their lives.
* * * *.
T. 6-7.
{¶31} And later, when the trial court suggests any evidence pertaining to
the victim's sexual orientation is wholly irrelevant because the victim is 15 and
even alleged consent to a sexual act is not a defense:
[DEFENSE COUNSEL]: I understand what your ruling is
going to be, but the purpose of the evidence of his sexual
orientation isn't to establish conduct on his part or smear his
reputation. It's to show it was an issue of animosity between
himself, his mother, and [appellant] the day they were talking
to him, he was running into problems at school, with
counseling. And according to information I received, that
was a source of unhappiness for [W.P.]. It shows a reason
he would be upset with my client, on top of many other
reasons.
T. 11. Richland County, Case No. 14CA62 12
{¶32} The trial court properly ruled the prejudicial effect of the proffered
evidence, nebulous at best outweighed any probativeness and was therefore
inadmissible.
{¶33} Appellant further argues, though, that evidence of the victim's
sexual activity should have been admitted, another argument that was not before
the trial court. Defense trial counsel specifically acknowledged "[t]here is no
direct evidence of [the victim's] sexual activity before or after the incident." T. 6,
supra. Instead, appellant's argument at trial was that the victim was having
emotional problems that somehow culminated in him wanting appellant out of
their lives, an argument the trial court correctly determined is unrelated to
evidence of sexual orientation.
{¶34} On appeal, though, appellant argues "[t]he evidence of sexual
orientation was relevant to the issue of why there was evidence of penetration to
the rectum of [the victim]." Brief, 4. Such evidence was neither proffered nor
argued at trial. Based solely upon appellant's contention here, the admission of
such evidence would clearly violate Ohio's rape shield law, which excludes
reputation, opinion, and specific-acts evidence of a victim's alleged sexual history
unless an exception applies. State v. Shuster, 5th Dist. Morgan Nos.
13AP0001and 13AP0002, 2014-Ohio-3486, ¶¶ 68-69, appeal not allowed, 141
Ohio St.3d 1489, 2015-Ohio-842, 26 N.E.3d 824, reconsideration denied, 142
Ohio St.3d 1469, 2015-Ohio-1896, 30 N.E.3d 976, citing R.C. 2907.02(D); R.C.
2907.05(E). Appellant's summary argument fails to address any exception under
which such evidence would be relevant or admissible. Richland County, Case No. 14CA62 13
{¶35} We further note the sexual-orientation issue was raised before the
trial court as a motion in limine by appellee: appellee moved to exclude evidence
of the victim's sexual orientation and appellant responded in opposition.
Appellant never raised the issue again after the trial court granted the motion in
limine. In State v. Pyo, 5th Dist. Delaware No. 04CAA01009, 2004-Ohio-4768,
we explained: “In general, the ruling on a motion in limine does not preserve the
record on appeal and an appellate court need not review the ruling unless the
claimed error is preserved by an objection at trial." State v. Grubb, 28 Ohio St.3d
199, 503 N.E.2d 142 (1986), paragraph two of the syllabus, citing, e.g., State v.
Leslie, 14 Ohio App.3d 343, 344, 471 N.E.2d 503 (1984).
{¶36} Appellant's first assignment of error is overruled.
II., III.
{¶37} Appellant's second and third assignments of error are related and
will be considered together. Appellant argues the trial court should not have
permitted the victim and his mother to testify on rebuttal and that defense trial
counsel was ineffective for failing to object to the rebuttal witnesses. We
disagree.
{¶38} “Rebutting evidence is that given to explain, refute, or disprove new
facts introduced into evidence by the adverse party; it becomes relevant only to
challenge the evidence offered by the opponent, and its scope is limited by such
evidence.” State v. McNeill, 83 Ohio St.3d 438, 446, 700 N.E.2d 596 (1998);
State v. Grinnell, 112 Ohio App.3d 124, 146, 678 N.E.2d 231 (1996) [“The
purpose of rebuttal is to permit the state the opportunity to refute new evidence Richland County, Case No. 14CA62 14
offered by the defendant in the presentation of his case.”]. The Ohio Supreme
Court has held that “[a] party has an unconditional right to present rebuttal
testimony on matters which are first addressed in an opponent's case-in-chief
and [that is not testimony that should have been presented] in the rebutting
party's case-in-chief.” Phung v. Waste Mgmt. Inc., 71 Ohio St.3d 408, 410, 644
N.E.2d 286 (1994). It has also written that “[i]t is within the trial court's discretion
to determine what evidence is admissible as proper rebuttal.” McNeill, supra, 83
Ohio St.3d at 446. In order to find an abuse of discretion, we must determine that
the trial court's decision was unreasonable, arbitrary or unconscionable and not
merely an error of law or judgment. State v. Richards, 5th Dist. Stark No.
1999CA00362, 2000 WL 502831, *3 (Apr. 17, 2000), citing Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶39} Appellant argues appellee's rebuttal witnesses, Bowman and W.P.,
merely restated their testimony from direct examination. We disagree with this
characterization. Both witnesses responded to the defense raised by appellant:
that W.P.'s injuries may have been caused by a bout of severe diarrhea. Both
witnesses also responded to specific claims raised in the defense case including
W.P.'s alleged dislike of appellant and appellant's statement upon first learning of
the accusation. Appellant's cited case, State v. Leuin, is inapposite because the
error in that case was premised upon impermissible character evidence
presented upon rebuttal. State v. Leuin, 11 Ohio St.3d 172, 175, 464 N.E.2d
552, (1984) (per curiam). Appellant cites no such impermissible character
evidence here, nor is there any such evidence in the record. Richland County, Case No. 14CA62 15
{¶40} We find appellee's rebuttal testimony was limited to explaining,
refuting, and disproving new facts introduced into evidence by appellant and was
thus not improper. As appellant further points out in his third assignment of error,
defense trial counsel did not object to appellee's rebuttal testimony at trial. In
light of our analysis supra, however, this failure to object is not ineffective
assistance of counsel.
{¶41} To succeed on a claim of ineffectiveness, a defendant must satisfy
a two-prong test. Initially, a defendant must show that trial counsel acted
incompetently. See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052
(1984). In assessing such claims, “a court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’”
Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 (1955).
“There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in
the same way.” Strickland, 466 U.S. at 689. The question is whether counsel
acted “outside the wide range of professionally competent assistance.” Id. at 690.
{¶42} Even if a defendant shows that counsel was incompetent, the
defendant must then satisfy the second prong of the Strickland test. Under this
“actual prejudice” prong, the defendant must show that “there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. Richland County, Case No. 14CA62 16
{¶43} In light of our determination that the rebuttal testimony was not
improperly admitted, we find defense trial counsel did not act incompetently in
failing to object thereto. Moreover, upon our review of this trial record, there is no
possibility that if the testimony was not admitted, the result of the trial would have
been different.
{¶44} Appellant's second and third assignments of error are therefore
overruled.
IV.
{¶45} In his fourth assignment of error, appellant argues the trial court
erred in sentencing him to the maximum sentence. We disagree.
{¶46} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–
4912, the Ohio Supreme Court established a two-step procedure for reviewing a
felony sentence. The first step is to “examine the sentencing court's compliance
with all applicable rules and statutes in imposing the sentence to determine
whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If
the first step is satisfied, the second step requires the trial court's decision be
reviewed under an abuse-of-discretion standard. Id. We have recognized that
“[w]here the record lacks sufficient data to justify the sentence, the court may well
abuse its discretion by imposing that sentence without a suitable explanation.”
State v. Firouzmandi, 5th Dist. Licking No.2006–CA–41, 2006–Ohio–5823, ¶ 52.
{¶47} Subsequent to the Ohio Supreme Court's Foster decision, “[t]he
decision to impose the maximum sentence is simply part of the trial court's
overall discretion in issuing a felony sentence and is no longer tied to mandatory Richland County, Case No. 14CA62 17
fact-finding provisions.” State v. Parsons, 7th Dist. Belmont No. 12 BE 11, 2013–
Ohio–1281, ¶ 14.
{¶48} In the instant case, the trial court merged Counts II and III with
Count I and sentenced appellant upon Count I. The mandatory prison term of 11
years is within the statutory range for the offense of forcible rape and is in
accordance with law. R.C. 2907.02(A)(2); R.C. 2929.14(A)(1).
{¶49} In the instant case, on the record at the sentencing hearing, the trial
court noted it considered the purposes and principles of sentencing contained in
R.C. 2929.11 and considered the seriousness factors of R.C. 2929.12.
{¶50} The trial court also cited a number of specific factors relevant to the
decision to impose a maximum sentence. The injury was exacerbated by the
victim's age; the victim suffered both physical and psychological harm; and the
relationship between the offender and the victim facilitated the offense. This
appellant also demonstrates the likelihood of recidivism because he was on
community control when he committed the offense, the terms of which he
violated by drinking and cohabitating with the victim's mother. Appellant has a
history of criminal convictions including an offense of violence and has not
responded to treatment. Finally, appellant demonstrated no remorse.
{¶51} We find the sentence of the trial court is fully supported by the
record and does not constitute an abuse of discretion.
{¶52} Appellant's fourth assignment of error is overruled. Richland County, Case No. 14CA62 18
CONCLUSION
{¶53} Appellant's four assignments of error are overruled and the
judgment of the Richland County Court of Common Pleas is affirmed.
By: Delaney, J. and
Gwin, P.J.
Farmer, J., concur.