State v. Dasen
2017 Ohio 5556
Ohio Ct. App.2017Background
- Victim E.D., born 1996, diagnosed with Asperger’s/autism spectrum disorder and developmental delays (IQ ~81), reported in May 2015 that her father, Kevin Dasen, had sexually assaulted her repeatedly from 2009–2015.
- Dasen was indicted on 21 counts: seven counts of rape under R.C. 2907.02(A)(2), seven counts of rape under R.C. 2907.02(A)(1)(c), and seven counts of sexual battery under R.C. 2907.03(A)(5). He pleaded not guilty.
- Pretrial rulings: suppression motion denied (consent to search cell phone); court allowed State’s proffered evidence (not characterized as Evid.R. 404(B) “other acts”) as material to elements of rape; motion in limine granted to exclude victim’s prior sexual history under the rape-shield law.
- At a five-day jury trial, the victim and other witnesses testified; Dasen testified in his defense. Jury convicted Dasen of 12 counts of rape and 7 counts of sexual battery (19 convictions total).
- Sentencing: trial court found certain counts allied but selected seven non-allied rape counts for sentencing and imposed consecutive 10-year terms on each, totaling 70 years. Dasen appealed on multiple grounds.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Dasen) | Held |
|---|---|---|---|
| Sufficiency / Manifest weight of evidence of convictions (rape and sexual battery) | State: victim testimony, expert and family testimony about victim’s developmental disabilities, and specific incidents suffice to prove sexual conduct, force/compulsion, and impairment over separate time periods. | Dasen: evidence insufficient to prove separate incidents, force, or victim’s inability to consent; convictions against manifest weight. | Court: Affirmed — evidence sufficient; not an exceptional case to overturn on manifest weight. |
| Suppression: warrantless search of cell phone | State: Dasen voluntarily produced phone, gave oral permission, then signed a written consent-to-search form; consent covers search and use by investigating agencies (ICAC). | Dasen: consent was not knowing/voluntary; search exceeded scope because ICAC (outside agency) conducted it. | Court: Affirmed — totality of circumstances shows knowing, voluntary consent; scope objectively reasonable. |
| Admission of State’s proffered conduct evidence (404(B) issue) | State: proffered testimony bears on elements of rape (force, impairment) and is not classic 404(B) “other acts” evidence; admissible for its probative value on material elements. | Dasen: trial court abused discretion by admitting improper 404(B) evidence. | Court: Affirmed — trial court did not treat it as 404(B) and appropriately admitted the evidence as material/probative to elements; assignment rejected. |
| Rape-shield / exclusion of victim’s prior sexual history | State: R.C. rape-shield precludes defendant from introducing victim’s prior sexual conduct; motion in limine properly granted. | Dasen: trial court erred in excluding evidence of E.D.’s prior sexual activity. | Court: Issue not preserved — Dasen failed to proffer evidence at trial after in limine ruling; appellate review declined. |
| Admission of victim’s medical records (hearsay) | State: medical records are business records (Evid.R. 803(6)) and statements to providers for diagnosis/treatment fall under Evid.R. 803(4); admissible. | Dasen: medical records contained hearsay and required testimony of medical personnel; should have been redacted (e.g., relocation statements). | Court: Affirmed — records admissible under business-records and medical-treatment exceptions; statements identifying perpetrator and placement details reasonably pertinent to treatment. |
| Sentencing: statutory findings and allied-offense merger | State: trial court addressed R.C. 2929.11/2929.12 at sentencing and selected non-allied counts across distinct date ranges; consecutive 10-year terms lawful. | Dasen: trial court failed to make required findings, ignored mitigating factors, and erred by not merging allied offenses. | Court: Affirmed — record shows consideration of sentencing statutes; counts involve separate date ranges/separate conduct so no merger; 70-year sentence supported. |
Key Cases Cited
- Thompkins v. Ohio, 78 Ohio St.3d 380 (legal standard for sufficiency and manifest-weight distinction)
- State v. Jenks, 61 Ohio St.3d 259 (standard for sufficiency review)
- State v. Eskridge, 38 Ohio St.3d 56 (coercion inherent in parental authority; force need not be overt)
- State v. Zeh, 31 Ohio St.3d 99 (definition/explanation of "substantially impaired")
- Schneckloth v. Bustamante, 412 U.S. 218 (voluntariness of consent under totality of circumstances)
- Bumper v. North Carolina, 391 U.S. 543 (government bears burden to prove consent)
- State v. Robinette, 80 Ohio St.3d 234 (consent and voluntariness analysis)
- State v. Foster, 109 Ohio St.3d 1 (trial court discretion within statutory sentencing range)
- State v. Marcum, 146 Ohio St.3d 516 (standard for appellate review of felony sentences)
- State v. Ruff, 143 Ohio St.3d 114 (R.C. 2941.25 allied-offense analysis)
- State v. Otten, 33 Ohio App.3d 339 (manifest-weight standard guidance)