State v. Bender
2020 Ohio 722
Ohio Ct. App.2020Background
- Victim K.W. was bound, suspended from basement rafters, beaten, raped, and otherwise assaulted by Jason G. Bender on June 28–29, 2018; SANE/forensic nurse Andi Stevens examined and recorded a narrative history from K.W.
- Bender was indicted on felonious assault (with a firearm spec), kidnapping (with sexual-motivation spec later dismissed), rape (with certain specs later dismissed), and having weapons while under disability.
- At trial (Apr. 22–24, 2019) the jury convicted Bender on all counts and specifications; trial court sentenced him to an aggregate 30-year prison term and classified him as a Tier III sex offender.
- On appeal Bender raised three assignments: (1) Confrontation/hearsay challenge to Stevens’s testimony recounting K.W.’s hospital narrative; (2) ineffective assistance for counsel not objecting to the court calling K.W. as a court witness under Evid.R. 614; and (3) insufficiency of evidence as to the force element of rape.
- The court held (1) no Confrontation violation because the victim testified and was cross-examined and Stevens’s narrative fell within Evid.R. 803(4) as made for medical diagnosis/treatment; (2) counsel was not ineffective because the court permissibly called the reluctant victim and counsel’s failure to object was not deficient; and (3) evidence was sufficient to prove the rape force/threat-of-force element under the totality of the circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admission of SANE nurse Stevens’s testimony recounting K.W.’s hospital narrative violated Confrontation Clause or was inadmissible hearsay | State: Stevens’s testimony was admissible under Evid.R. 803(4) (statements for medical diagnosis/treatment) and K.W. testified at trial so Confrontation Clause not implicated | Bender: K.W.’s out-of-court statements to Stevens were testimonial/hearsay and their admission denied confrontation and due process rights | Court: Overruled — K.W. testified and was cross-examined so no Confrontation error; Stevens’s testimony also admissible under Evid.R. 803(4); any hearsay error would be harmless |
| Whether trial counsel was ineffective for not objecting to the court calling K.W. as a court’s witness under Evid.R. 614 | State: Court properly invoked Evid.R. 614 because victim was reluctant/uncooperative; parties still could cross-examine | Bender: Counsel should have objected to the court calling the victim, raising due process/effective-assistance problems | Court: Overruled — designating K.W. as court witness was proper given State’s representations; counsel’s failure to object was not deficient |
| Whether evidence was sufficient to support rape conviction (force or threat of force) | State: Totality of circumstances (prolonged torture, restraint, beatings, weapons, threats, victim’s fear and statement she had sex to calm him) supports inference that victim’s will was overcome by fear/duress | Bender: Victim’s testimony that sex sometimes calmed him shows consensual/knowing sex and negates forcible element | Court: Overruled — objective facts (binding, suspension, beatings, weaponized assaults, threats, victim’s fear and compliance to end abuse) permit reasonable inference of force/threat of force; evidence sufficient |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (Confrontation Clause bars admission of testimonial out-of-court statements unless witness unavailable and defendant had prior opportunity for cross-examination)
- Davis v. Washington, 547 U.S. 813 (U.S. 2006) (articulated the ‘‘primary purpose’’ test for determining whether statements are testimonial)
- Michigan v. Bryant, 562 U.S. 344 (U.S. 2011) (further explication of primary-purpose testimonial analysis)
- Bullcoming v. New Mexico, 564 U.S. 647 (U.S. 2011) (testimonial statements create Confrontation Clause concerns; defines testimonial core)
- Williams v. Illinois, 567 U.S. 50 (U.S. 2012) (Confrontation Clause does not bar use of testimonial statements for purposes other than establishing truth)
- State v. Schaim, 65 Ohio St.3d 51 (Ohio 1992) (defendant compels submission by force or threat when defendant uses force or creates belief force will be used)
- State v. Muttart, 116 Ohio St.3d 5 (Ohio 2007) (Evid.R. 803(4) admissibility and reliability of statements made for medical diagnosis/treatment)
- State v. Jenks, 61 Ohio St.3d 259 (Ohio 1989) (standard for sufficiency-of-evidence review)