State v. Whiteside

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[Cite as State v. Whiteside, 2003-Ohio-3030.] IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee vs. : : C.A. CASE NO. 19482 T.C. CASE NO. 01CR3997 CHARLES WHITESIDE : (Criminal Appeal from Common Pleas Court) Defendant-Appellant : . . . . . . . . . O P I N I O N Rendered on the 13th day of June, 2003. . . . . . . . . . Mathias H. Heck, Jr., Pros. Attorney; Kirsten A. Brandt, Asst. Pros. Attorney, P.O. Box 972, Dayton, Ohio 45422, Atty. Reg. No. 0070162 Attorney for Plaintiff-Appellee Richard A. Nystrom, 1502 Liberty Tower, 120 W. Second Street, Dayton, Ohio 45402, Atty. Reg. No. 0040615 Attorney for Defendant-Appellant . . . . . . . . . GRADY, J. {¶1} Defendant, Charles Whiteside, appeals from his conviction and sentence for rape. {¶2} The evidence presented by the State demonstrates that, during the summer of 2001, Defendant and his young son lived at 2901 Millicent Avenue, Dayton, with Defendant s stepmother, and sixteen year old half-sister, S.W. July after S.W. awoke, she went through her father, One day in regular morning routine of eating breakfast and then taking a shower. S.W. s 2 As S.W. father had left the house to take her mother to work. was finishing her shower she heard Defendant go downstairs and leave the house. After S.W. went into her bedroom and closed the door, she heard Defendant come back inside the house and walk up the stairs. {¶3} Defendant opened told him to get out. S.W. s bedroom door, whereupon she Instead of leaving, however, Defendant entered S.W. s bedroom, pushed her down on the floor between the bed and the dresser, and laid on top of her. Defendant pulled S.W. s panties down as she screamed at him to get off her and unsuccessfully engaged in interrupted struggled vaginal by the to free intercourse sound of herself. with their Defendant S.W.. father s Defendant was entering the car driveway, and he jumped up and ran into his bedroom. warned S.W. not to tell her parents. then Defendant S.W. complied because she was afraid that her father would hurt Defendant. {¶4} After this incident Defendant at the house. S.W. avoided being alone with One day in August 2001, after her father had left the house to take S.W. s mother to work, S.W. was finishing her shower when she heard Defendant go downstairs and leave the house. After putting on underclothes and a bathrobe, S.W. went downstairs to get her clothes out of the dryer. Defendant returned before S.W. could get back upstairs. {¶5} Defendant grabbed S.W. and pulled her down onto the 3 Defendant pulled S.W. s panties down floor in the living room. and laid on top of her. Once again S.W. told Defendant to get off of her, and again struggled unsuccessfully to free herself. Just as he did before, Defendant engaged in vaginal intercourse with S.W.. Defendant was interrupted when their father sounded the horn of his car as he pulled into the driveway. jumped up and ran into the bathroom. Defendant S.W. ran upstairs. The next day Defendant warned S.W. not to tell her parents because they wouldn t believe her. S.W. never gave Defendant permission to engage in sexual activity with her. {¶6} Around August 31, 2001, Defendant asked his father to take him to a doctor for treatment for some personal problems. Defendant did not have any health insurance, and so his father took him to the Montgomery County Combined Health District. Defendant reported to a nurse there that he was experiencing a discharge from his penis. an inflammation NGU. of the Lab tests showed that Defendant had urethra, a condition commonly called Defendant was given a supply of antibiotics and was told that chlamydia was the most common cause of NGU, and that he needed to call chlamydia test. back in two weeks the results of his When Defendant left the clinic his father asked him about the pills he had received. the same thing I had in Cleveland. {¶7} for Defendant responded: It s Chlamydia. On September 7, 2001, Defendant s lab tests came back 4 About this same time Defendant and his positive for chlamydia. father got into altercation an because argument that Defendant was erupted not into a working. physical Defendant s father put Defendant on a bus to Cleveland where other members of Defendant s girlfriend family drove to lived. Two Cleveland and days later, picked Defendant s Defendant up and brought him back to her house in Dayton, where Defendant lived until police arrested him for these offenses. {¶8} On November 1, Defendant had raped her. 2001, tests for 2001, at his her parents that On November 8, 2001, the results of sexually positive for chlamydia. told Police were called and S.W. went that same day to see her doctor. S.W. s S.W. transmitted diseases came back Defendant was arrested on November 21, girlfriend s house. When questioned by police Defendant denied raping S.W. and said he never had chlamydia. {¶9} Defendant was indicted on two counts of rape. 2907.02(A)(2). R.C. Following a jury trial, Defendant was found not guilty of the July rape but guilty of the August rape. The trial court sentenced Defendant to three years imprisonment and labeled him a sexually oriented offender. {¶10} Defendant has timely appealed to this court from his conviction and sentence. FIRST ASSIGNMENT OF ERROR 5 {¶11} WHETHER DEFENDANT S CONVICTION FOR RAPE WAS SUPPORTED BY THE MANIFEST WEIGHT OF SUFFICIENT EVIDENCE OR BEYOND REASONABLE DOUBT AND THE ABSENCE OF WHICH VIOLATED DEFENDANT S CONSTITUTIONAL TO AMENDMENT OF FOURTEENTH RIGHT DUE PROCESS THE UNITED UNDER STATES THE FIFTH AND CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO STATE CONSTITUTION. {¶12} Defendant argues that the trial court erred in overruling his Crim.R. 29 and post verdict motions for acquittal because the evidence presented by the State was insufficient to sustain his conviction for rape. {¶13} A whether the sufficiency State has of the presented evidence adequate argument evidence challenges on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law. Ohio St.3d 380, 1997-Ohio-52. State v. Thompkins, 78 The proper test to apply to such an inquiry is the one set forth in paragraph two of the syllabus of State v. Jenks (1991), 61 Ohio St.3d 259: {¶14} 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. The relevant inquiry is whether, after viewing the evidence in a light most 6 favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. {¶15} Defendant was convicted of violating R.C. 2907.02(A)(2), which provides: {¶16} No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force. intercourse. Sexual conduct includes vaginal R.C. 2907.01(A). {¶17} The testimony of S.W. alone, if believed, is sufficient to convince the average mind of Defendant s guilt, beyond a reasonable doubt. Moreover, the evidence that corroborates S.W. s testimony. State presented For instance, S.W. testified that she never had sexual relations with other persons either before or after the rapes occurred. Dr. Bockhorn, speculum testified (examining that instrument) prior vaginal penetration. the well fact S.W. s physician, S.W. indicated tolerated some sort the of That evidence corroborates S.W. s testimony that Defendant had vaginally raped her. {¶18} The evidence presented by the State also demonstrates that on August 31, 2001, Defendant sought medical treatment for a discharge from his penis; that on September 7, 2001, Defendant tested positive for chlamydia; that on November 8, 2001, S.W. 7 tested positive for chlamydia; that S.W. had never engaged in sexual activity prior to or after Defendant raped her; and, that a man with chlamydia spreads the disease by contact with his infected body fluids via ejaculation or urethral discharge. jury could reasonably infer from this direct evidence The that Defendant infected S.W. with chlamydia via sexual conduct, which further corroborates S.W. s testimony. {¶19} Viewing this evidence in a light most favorable to the State, a rational trier of fact could find the elements of rape proven beyond a reasonable doubt. essential Defendant s conviction is supported by legally sufficient evidence. {¶20} Defendant additionally argues that his conviction is against the manifest weight of the evidence. In support Defendant claims that S.W. s testimony is not worthy of belief because of inconsistencies in the details of the accounts she gave of the events; because no semen stains were found on the floor where the rapes occurred; because it is not possible to tell with absolute certainty if S.W. was infected with chlamydia by Defendant; about being and, around S.W. never Defendant exhibited after the any fear rapes, or as anxiety would be expected had he raped her. {¶21} A weight of the evidence argument challenges the believability of the evidence; which of the competing inferences suggested by the evidence is more believable or persuasive. 8 The proper test to apply to that inquiry is Hufnagle, supra. the one set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175: {¶22} [T]he court, reviewing the entire record, weighs the evidence and credibility of all reasonable witnesses and inferences, determines considers whether in the resolving conflicts in the evidence, the jury lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. {¶23} Defendant testified at trial and denied raping S.W.. Defendant suggested that S.W. was jealous and may have fabricated the story because she was not getting the attention she was used after Defendant and his two year old son moved into the house. {¶24} The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve. v. Lawson State v. DeHass (1967), 10 Ohio St.2d 230. (August 22, 1997), Montgomery App. No. In State 16288, we stated: {¶25} [b]ecause the factfinder . . . has the opportunity to see and hear discretionary the power witnesses, of a the court of cautious appeals exercise of to that find the a judgment is against the manifest weight of the evidence requires that substantial deference be extended determinations of credibility. to the 9 factfinder s 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. Id., at p. 4. {¶26} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of facts lost its way in arriving at its verdict. State v. Bradley (October 24, 1997), Champaign App. No. 97-CA-03. {¶27} While minor and peripheral inconsistencies exist in some of the details of the accounts of the rapes that S.W. gave to police as against her trial testimony, the basic elements of her accounts remained the same. The State s evidence demonstrates that it is not at all unusual in rape cases to find no physical evidence such as semen stains. Furthermore, while it is not possible to say with absolute certainty that Defendant was the source of S.W. s chlamydia infection, the jury could reasonably infer that Defendant infected S.W., given the direct evidence presented by the State. As for Defendant s claim that S.W. s credibility was diminished by her lack of fear of him following the rapes, the evidence shows the substantial efforts S.W. made to avoid being in the house alone with Defendant after the July incident. Additionally, although S.W. spent the day at 10 Kings Island with Defendant and his girlfriend following the August incident, she testified that once they got to the park she spent most of the day alone on the rides. {¶28} The jury in this case did not act unreasonably in choosing to believe S.W. s version of the events rather than Defendant s. In reviewing this record as a whole we cannot say that the evidence weighs heavily against a conviction, that the jury lost its way, or that a manifest miscarriage of justice has occurred. Defendant s conviction is not against the manifest weight of the evidence. {¶29} The first assignment of error is overruled. SECOND ASSIGNMENT OF ERROR {¶30} WHETHER THE COURT ERRED IN FAILING TO HOLD A HEARING THREE DAYS PRIOR TO TRIAL PURSUANT TO ORC 2900.00 (SIC) CONCERNING THE PRIOR SEXUAL BEHAVIOR OF THE ALLEGED RAPE VICTIM SINCE SAID EVIDENCE SEXUAL USED BY HISTORY THE STATE WAS TO A NECESSARY CONVICT DOUBT ELEMENT OF THE (SIC) AND THE ABSENCE OF WHICH VIOLATED DEFENDANT S CONSTITUTIONAL RIGHT TO DUE PROCESS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 SECTION 10 OF THE OHIO STATE CONSTITUTION. {¶31} The prosecutor asked S.W. during her direct testimony whether she had ever engaged in sexual relations with another person before Defendant elicit is 2907.02(D) these objected alleged that rapes the took evidence inadmissible per the and The trial (E). rape 11 147). place. question the (T. sought shield court statute. then to R.C. recessed the proceedings and conducted a hearing in chambers. {¶32} R.C. 2907.02(D) prohibits reputation and opinion evidence concerning the victim s sexual activity and evidence of specific instances of a victim s sexual activity unless two conditions are satisfied. First, it must be evidence that involves . . . the origin of semen, pregnancy, or disease, or the victim s past sexual activity with the offender. Id. Second, the court must find that the evidence is material to a fact at issue in the case and that its inflammatory prejudicial nature does not outweigh its probative value. or R.C. 2907.02(E) further requires a hearing in chambers to determine those matters not less than three days before trial, or for good cause shown during the trial. {¶33} Defendant argued at an in-chambers hearing the court held during trial that the evidence the prosecutor s question sought to elicit was inadmissible under R.C. 2907.02(D), and that even if it was admissible the prior hearing that R.C. 2907.02(E) requires to determine its admissibility had not been held. The State responded that the rape shield statute was not implicated by the question because it concerned the absence of sexual activity, not its occurrence. proposition and overruled 12 The court agreed with that Defendant s objection. The court further stated that it would permit cross-examination on those issues by the Defendant. {¶34} R.C. 2907.01(C) (T. 152). defines sexual activity to include both sexual conduct and sexual contact, as those terms are defined by R.C. 2907.02(A) and (B), respectively. matters those definitions omission to act. involve are positive All of the acts, not an It was on that basis that the court concluded that a question concerning the absence of any sexual activity on the victim s part does not trigger the protections of the rape shield statute. {¶35} The State also contended that the question was proper because the evidence it sought to elicit tended to show that the victim s chlamydia was a product of her rapes by the Defendant, who suffered from the same communicable disease, and to that extent involves evidence of the origin of . . . disease. agree that it did. We However, we do not agree with the State s other contention that the evidence sought was not within the protections of the rape shield statute because it concerned the absence of sexual activity, a view with which the trial court agreed. {¶36} The absence of sexual activity is not proof of sexual activity, much less any specific instance of it. Nevertheless, 13 an assertion that no sexual activity took place does concern sexual activity, and to that extent is evidence within the ambit of R.C. 2907.02(D). A contrary holding would not serve the broad and prophylactic purpose of the act, which is to avoid badgering And, and while statute embarrassment we have affords a some of both doubts victim can victims whether be and the invoked defendants. protections in this way, the by a defendant, R.C. 2907.02(D) states that such evidence shall not be admitted satisfied. unless the conditions of the statute are first That flat prohibition runs both ways. {¶37} Here, the conditions that R.C. 2907.02(D) imposes were satisfied. to elicit Though the evidence the prosecutor s question sought was a matter concerning specific instances of the victim s sexual activity, in that there were none, the evidence involved the origin of disease and was therefore admissible. The further question is whether the failure to hold the hearing that R.C. 2907.02(E) requires to determine admissibility of that evidence at least three days before it was offered so prejudiced Defendant that it constitutes reversible error. {¶38} R.C. 2907.02(E) permits the in-chambers hearing during trial instead of three days prior for good cause shown. The State asserts that the view it took, that the evidence it sought did not activity, involve which a specific caused it instance to not of ask the for a victim s prior sexual hearing, 14 We are willing to accept that constitutes such good cause. representation in this instance. However, this opinion puts the State on notice that in future cases it should request a hearing at least three days before such evidence is offered to determine the admissibility of sexual activity evidence of this kind. {¶39} Neither can we find that the Defendant was unduly prejudiced by the failure to hold the prior hearing that R.C. 2907.02(E) contemplates. The fact that S.W. had no sexual relations with any other person was neither inflammatory nor prejudicial. the trial The court conducted a hearing in chambers during in which inadmissible. Defendant contended the evidence was When the court held the evidence admissible, the court afforded the Defendant a full right of cross-examination on the matter relations. involved; The record exercised that right. the victim s reveals Therefore, no that lack the of other Defendant sexual never undue prejudice is shown. {¶40} The second assignment of error is overruled. THIRD ASSIGNMENT OF ERROR {¶41} WHETHER THE TRIAL COURT ERRED IN FAILING TO GIVE THE REQUESTED INSTRUCTION TO THE JURY CONCERNING THE IMPROPRIETY OF MAKING AN INFERENCE UPON AN INFERENCE DOUBT AND THE ABSENCE OF WHICH VIOLATED DEFENDANT S CONSTITUTIONAL RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES 15 CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO STATE CONSTITUTION. {¶42} At the conclusion of the trial court s instructions to the jury, Defendant requested that the court instruct the jurors that you may not make an inference on an inference. court refused to give the requested instruction. The trial Defendant now argues that the trial court abused its discretion in refusing to give his requested instruction. Defendant claims that in order to use the evidence regarding chlamydia to find him guilty of rape, the jurors had to stack inference upon inference. We disagree. {¶43} A trial court s refusal to give a requested jury instruction is prejudicial error if the instruction correctly states the law, is pertinent to the case, and its substance is not otherwise covered by the general charge. State v. Snead (1992), 63 Ohio St.3d 3. {¶44} First, we note that the court s general charge to the jury did include an instruction on circumstantial evidence and inferences. That instruction informed jurors that they were permitted, but not required, to draw an inference from other facts which you find have been established by direct evidence. The trial court s instruction on inferences did not permit the jury to make an inference based solely upon another inference. State v. Palmer, 80 Ohio St.3d 543, 1997-Ohio-312. {¶45} Second, Defendant s requested instruction complete or accurate statement of law. was 16 not a In State v. King (May 17, 1995), Montgomery App. No. 14309, this court observed: {¶46} Though widely denounced by both courts and legal commentators, the rule prohibiting the stacking of one inference upon another is still recognized in Ohio. Motorists Mut. Inc. So. v. Hamilton Twp Trustees (1986), 28 Ohio St.3d 13, 28 OBR 77, 502 N.E.2d application. 204. It Nevertheless, prohibits only the the rule drawing has of very one limited inference solely and entirely from another inference, where that inference is unsupported by any additional facts or inferences drawn from other facts. Hurt v. Charles J. Rogers Transp. Co. (1955), 164 Ohio St. 329, 58 O.O. 122, 130 N.E.2d 820, paragraph one of the syllabus. inferences But in the rule does combination not with forbid the use additional of facts. parallel Id. at paragraph two of the syllabus. Nor does it prohibit the drawing of multiple inferences separately from the same set of facts. Id. {¶47} Lastly, Defendant s requested instruction was not pertinent because the evidence regarding chlamydia which is the focus of his argument, did not require the jury to impermissibly stack one inference upon Defendant guilty of rape. another inference in order to find 17 {¶48} S.W. testified that Defendant vaginally raped her in July and August 2001, and that she had never engaged in sexual relations with anyone before or after those rapes occurred. The examining physician, Dr. Bockhorn, testified that the fact S.W. tolerated the speculum well during her examination indicated she had experienced a sort of vaginal penetration of some kind in the past. S.W. tested positive for chlamydia after the rapes occurred. Shortly after the rape in August, Defendant sought medical father treatment he had for penile chlamydia. positive for chlamydia. that disease by discharge. Defendant s Defendant lab tests told came his back A male infected with chlamydia spreads contact with his infected body fluids via penetration and either ejaculation or urethral discharge. {¶49} Each evidence. of From Defendant had inference is these them, engaged not propositions the jury in sexual drawn was proved by direct reasonably could infer that intercourse with S.W. That solely from any other inference. Therefore, the conclusion of guilt to which that inference leads involves no impermissible stacking. {¶50} The third assignment of error is judgment of the trial court will be affirmed. FAIN, P.J. and WOLFF, J., concur. Copies mailed to: overruled. The 18 Kirsten A. Brandt, Esq. Richard A. Nystrom, Esq. Hon. David A. Gowdown

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