State v. Fether
2012 Ohio 892
Ohio Ct. App.2012Background
- Married for 22 years, live-in with Angela (disabled) and others; Angela, age 25–26, with mental/physical impairments.
- Jan 17, 2011, Angela found partially undressed in John Fether's room; Josephine (mother) witnessed him with Angela.
- Angela described and nurse testified that Fether put his penis in her vagina; Angela stated this occurred multiple times.
- DNA and semen evidence identified in various forensic analyses, though Angela's vaginal/perianal swabs did not yield a complete DNA profile linked to Fether.
- Appellant was charged with three counts of rape and three counts of sexual battery; jury convicted on one rape and one sexual battery; remaining charges acquitted.
- Trial court merged convictions as allied offenses and sentenced Fether to ten years, classifying him as a Tier III sex offender.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency/weight of evidence for rape and sexual battery | Fether argues insufficient/weight of evidence. | Fether contends evidence cannot sustain conviction. | Evidence supported convictions; not against weight or sufficiency. |
| Prosecutorial misconduct and closing argument impact | State’s comments improperly bolstered credibility. | Arguments within trial court discretion; not reversible plain error. | No reversible plain error; closing remarks not prejudicial enough. |
| Ineffective assistance of counsel | Counsel failed to object to improper testimony/argument. | No deficient performance or prejudice shown. | No ineffective assistance; insufficient prejudice shown. |
| Prior conviction impeachment of a witness crosses Evid.R. 609 | Court abused discretion by excluding prior trafficking conviction evidence. | Trial court properly exercised discretion under Evid.R. 609. | Court did not abuse discretion; admissibility properly denied. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (U.S. (1979)) (establishes standard for sufficiency of evidence)
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (weight-of-evidence standard in Ohio)
- State v. Banks, 71 Ohio App.3d 214 (1991) (corroboration not required in rape cases; credibility at issue for jury)
- State v. Liberatore, 69 Ohio St.2d 583 (1982) (prosecutor closing argument latitude; is within discretion)
- United States v. Barnard, 490 F.2d 907 (9th Cir. (1974)) (jury as trier of fact; credibility determination remains with jury)