State v. BarnesState v. Barnes
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).
Catherine R. Meehan, Patituce & Associates, LLC, 16855 Foltz Industrial Parkway, Strongsville, OH 44149 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Joshua Kenneth Barnes, appeals his convictions for Rape and other crimes in the Trumbull County Court of Common Pleas. For the following reasons, we affirm the convictions.
{¶2} On September 23, 2021, the Trumbull County Grand Jury indicted Barnes on the following charges: Rape (Counts 1-5), felonies of the first degree in violation of
{¶3} The charges were tried to a jury between April 25 and 28, 2022. At trial, the following relevant testimony was presented:
{¶4} P.P. testified that her date of birth is May 10, 2008, and that she was age thirteen at the time of trial. Currently she resides at a juvenile detention center because she is “very known for running away.” P.P. moved to Ohio in December 2018 and lived on Hartzell Avenue in Niles with her father (Raul or Rudy Posadas), her aunt (Maricella Posadas), her cousin (Barnes), and his two children.
{¶5} On New Year‘s Eve, Barnes was babysitting P.P. While they were watching a movie, Barnes asked her to “cuddle and sit with him.” She complied because “he was babysitting with me and I was afraid to not listen to him because I was gonna get in trouble.” Barnes began to touch her and asked if it was okay. P.P. said yes, “just being ten and scared of not listening and thinking I was gonna get in trouble.” Barnes eventually penetrated her digitally and stopped, according to P.P., because he knew she was uncomfortable.1
{¶6} The next day, P.P.‘s father was still absent from the home. Barnes and P.P. were again watching television toward evening time when he performed cunnilingus on
{¶7} In May 2019, shortly after her eleventh birthday, Barnes had intercourse with P.P. in the attic of the house. P.P. testified that “it hurt” but that she was afraid to say anything. Before moving to Ohio, P.P. was being raised by her grandparents who were very strict with her about respecting her elders. Sexual encounters with Barnes were frequent thereafter.
{¶8} Barnes eventually moved into an apartment nearby on Bentley Avenue with his girlfriend (Maddy). In December 2020, Barnes asked P.P. to spend the night. P.P. asked her father‘s permission: “I was afraid that if I didn‘t listen to him, something bad was either going to happen to me, like, physically being hurt or just something * * * bad was going to happen.” Later, when “everything came out,” Barnes threatened that he would make her life a living hell if she told anybody. Her father allowed her to spend the night because he trusted Barnes.
{¶9} Barnes decided to go “exploring,” i.e., visit abandoned buildings, that evening with P.P. and a friend (Jake). Barnes bought beer and allowed P.P. to drink some of it. They spent the evening in an abandoned factory in Warren. After dropping Jake off, Barnes drove around for maybe an hour in the Warren area before stopping behind a church where he and P.P. engaged in fellatio, cunnilingus, and vaginal intercourse.3
{¶11} Once outside, Barnes led P.P. through the garage into the basement where they engaged in fellatio. P.P. returned to her room through the bathroom window. As she was climbing inside, she knocked over a stand of toilet paper which worried her because Barnes told her “that if anybody found out * * * [it] could be very bad for him.”4
{¶12} While P.P. was staying at her aunt‘s house, her aunt bought her a journal to write down her feelings. She described the incident with Barnes in the journal in an entry dated May 30, 2021. She admitted some of the details in the journal were not true, such as she removed his clothing whereas Barnes actually removed his own clothes.
{¶13} On Father‘s Day, P.P. was with her father when he received a call from her aunt. Shortly after that Barnes arrived and spoke to her alone. He told her she cannot write things like what she wrote in her journal and that she would have come up with a lie. P.P. told her father that the journal was a fantasy about wanting to sleep with her cousin. After that, P.P. returned to her father‘s house.
{¶15} P.P. described an incident where she and Barnes were almost caught. He had taken her late at night to Waddell Park in Niles. They were interrupted by the approach of a police car. Barnes told her to hide in the woods and he would tell the officer that he was at the park for a run after working a late shift.
{¶16} Sometime later “towards fall,” Barnes texted P.P. that she should come over to his house. Once there, he had her engage in fellatio.6 They were interrupted by his girlfriend. P.P. left and eventually returned home. Later that evening, she admitted to her father that Barnes had been raping her.
{¶17} Zachary Zigmont, a police officer with the City of Niles, testified that, at about 4:30 a.m. on August 17, 2021, he encountered Barnes in Waddell Park. Barnes was out of his vehicle and claimed that he was at the park running after getting off of a midnight shift.
{¶18} Raul Posadas testified that, prior to her moving to Ohio, P.P. was in the custody of her grandparents who lived in Texas. He confirmed that Barnes would babysit P.P. and that P.P. was expected to listen to him. After its discovery, Barnes presented
{¶19} On the night that P.P. revealed that she and Barnes had been having sex, Raul contacted Barnes and had P.P. confront him with the accusation. The manner in which Barnes responded to and denied the accusation convinced Raul that P.P. was telling the truth. He decided he wanted Barnes’ confession before going to the authorities. The following day, Raul repeatedly texted Barnes that they needed to talk. When Barnes responded, Raul recorded the conversation which was played for the jury. During the conversation, Barnes admitted to sleeping with P.P. Raul deleted the texts he sent to Barnes before surrendering his phone to the police, although they were later recovered.
{¶20} Wesley Washington, a police officer for the City of Niles, testified that, on August 23, 2021, he took the initial police report from Raul of the allegations against Barnes. He attempted to interview Barnes’ girlfriend but she asserted her right against self-incrimination.
{¶21} Rasheeda Kalam, a pediatric social worker at the Akron Children‘s Hospital in Boardman, testified that she interviewed P.P. in the emergency room on August 23, 2021. P.P. reported being the victim of sexual assault and rape. She reported recent sexual activity taking place on August 20. P.P. volunteered that the perpetrator provided alcohol, vapes, and marijuana as a “reward.”
{¶22} Monique Malmer, a nurse practitioner in the Child Advocacy Center at the Akron Children‘s Hospital in Boardman, observed the medical diagnostic interview of P.P. by Melanie Deluca and, afterwards, conducted a physical examination on August 31, 2021. P.P. reported that during the initial time that penetration of the vagina occurred
{¶23} Elva Wyandt, an aunt of both P.P. and Barnes, testified that she and her family were visiting with Maricella on Memorial Day weekend in 2021. They had dogs with them that are prone to barking. Elva has known P.P. from a young age and noted that she has difficulty telling the truth.
{¶24} Maricella Posadas testified that she leased the house on Hartzell Avenue where she, Barnes, Raul and P.P. used to live. P.P. would use her iPad and conduct searches for sexual subjects. Eventually Maricella moved in with her boyfriend in Lordstown. On Memorial Day weekend in 2021, she slept in the living room with their dogs. P.P.‘s bedroom in the Lordstown residence had its own window that was larger than the one in the bathroom.
{¶25} Joshua Barnes, age thirty at the time of trial, testified and denied ever babysitting P.P. He denied the events associated with the “exploring” episode in December 2020. He denied the events associated with Memorial Day 2021. He admitted the encounter with Officer Zigmont in Waddell Park, but claimed he was there to go running and that P.P. was not present. He admitted that P.P. spent the night at his apartment on Bentley Avenue while she and her father were fighting. He denied hiding her in his car or otherwise trying to interfere with her father‘s custody.
{¶26} Barnes testified that he did not invite P.P. to his apartment on August 20, 2021. He was taking a nap that day and awoke to find P.P. on him. His clothes had been removed and his girlfriend saw him before he could get P.P. to leave. When he spoke
{¶27} Following the conclusion of testimony, the jury found Barnes guilty of all counts of the Indictment.
{¶28} On May 24, 2022, a sentencing hearing was held and, on June 8, 2022, the trial court issued its Entry on Sentence. The court sentenced Barnes as follows: for each count of Rape (Counts 1 to 5), life in prison with the possibility of parole after twenty-five years; for each count of Unlawful Sexual Conduct with a Minor (Counts 6 and 7), thirty-six months in prison; for Interference with Custody (Count 8), one hundred and eighty days in jail; and for each count of Furnishing Beer or Intoxicating Liquor to Underage Person (Counts 9 and 10), thirty days in jail. The sentences were ordered to be served concurrently for an aggregate sentence of life with the possibility of parole after twenty-five years.7
{¶29} On June 21, 2022, Barnes filed a Notice of Appeal. On appeal, he raises the following assignments of error:
[1.] The State failed to present sufficient evidence to prove appellant compelled P.P. to su[b]mit to sexual conduct by force or threat of force to warrant the imposition of a sentence of 25 years to life.
[2.] Appellant‘s conviction was against the manifest weight of the evidence.
[4.] The trial court erred in overruling Appellant‘s objection to hearsay statements thereby depriving Appellant of his right to a fair trial.
[5.] The admission of Monique Malmer‘s opinion regarding the veracity of P.P. was improper.
{¶30} The assignments of error will be addressed out of order. The last two assignments challenging the admission of evidence will be addressed first.
{¶31} “[A] trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). A trial court “does not have the discretion to admit evidence that is clearly not permitted by law * * * such as whether testimony constitutes hearsay.” State v. Davis, 11th Dist. Lake No. 2019-L-170, 2021-Ohio-237, ¶ 133. In such cases, the lower court‘s evidentiary ruling is reviewed de novo. Id.
{¶32} In the fifth assignment of error, Barnes argues that the trial court improperly allowed Monique Malmer to testify that the results of P.P.‘s medical examination “were consistent with her disclosure of sexual abuse,” and, thus, “the jury heard testimony from an expert which suggested that P.P. was truthful in her disclosure.” Brief of appellant at 27. According to Barnes, this testimony violates the rule that “[a]n expert may not testify as to the expert‘s opinion of the veracity of the statements of a child declarant.” State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989), syllabus.
The argument * * * fails to distinguish between expert testimony that a child witness is telling the truth and evidence which bolsters a child‘s credibility insofar as it supports the prosecution‘s efforts to prove that a child has been abused. Boston‘s syllabus excludes expert testimony offering an opinion as to the truth of a child‘s statements (e.g., the child does or does not appear to be fantasizing or to have been programmed, or is or is not truthful in accusing a particular person). It does not proscribe testimony which is additional support for the truth of the facts testified to by the child, or which assists the fact finder in assessing the child‘s veracity.
State v. Stowers, 81 Ohio St.3d 260, 262-263, 690 N.E.2d 881 (1998).
{¶34} The fifth assignment of error is without merit.
{¶35} In the fourth assignment of error, Barnes argues that the trial court erred in admitting, over the objection of defense counsel, the hearsay testimony of Rasheeda Kalam that P.P. reported Barnes giving her alcohol, vapes, and marijuana as a reward.
{¶37} In applying
{¶38} In the present case, P.P. underwent the “SCAN” (suspected child abuse or neglect) procedure in the emergency room of the Akron Children‘s Hospital in Boardman.
[W]hen the child arrives, they‘re triaged and the nurse takes their blood pressure, their weight, and makes sure there‘s no immediate medical concerns. And then they‘re taken to a room. A social worker is contacted. And then we interview the parents and the patient separately. And we get the history of the presenting situation. * * * We‘re working alongside the doctor throughout the process. * * * After I talk to the parent, I‘ll talk to the doctor, give them the information that the parent has given me and then I‘ll talk to the patient. And then I‘ll go back and talk to the doctor again. And then I‘ll make the referrals. Along with the outside referrals, like Children Services and the police, we also contact the Child Advocacy Center. And depending on if it‘s physical or sexual abuse, they kind of lead us and the doctor on what additional medical exams, if needed, to give the child.
{¶39} We find no abuse of discretion in the admission of the hearsay regarding Barnes supplying P.P. with alcohol, vapes, and marijuana. Statements regarding the use of alcohol, nicotine, and/or recreational drugs by a thirteen-year-old child are certainly relevant to proscribing care and treatment for that child. Contrary to Barnes’ position, such information reasonably includes the source of the substances and/or the manner in which the child obtained them. Nor does anything in the circumstances surrounding Kalam‘s interview of P.P. suggest a purpose other than medical diagnosis when the
{¶40} The fourth assignment of error is without merit.
{¶41} The first three assignments of error challenge the sufficiency and manifest weight of the evidence.
{¶42}
{¶43} Whereas “sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the evidence addresses the evidence‘s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). “[A] reviewing court asks whose evidence is more persuasive—the state‘s or the defendant‘s?” Id. An appellate court must consider all the evidence in the record, the reasonable inferences, the credibility of the witnesses, and whether, “in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” (Citation omitted.) Thompkins at 387. “Since there must be sufficient evidence to take a case to the jury, it follows that ‘a finding that a conviction is supported by the weight of the evidence necessarily must include a finding of sufficiency.‘” (Citation omitted.) State v. Heald, 11th Dist. Lake Nos. 2021-L-111 and 2021-L-112, 2022-Ohio-2282, ¶ 19.
{¶44} In the first assignment of error, Barnes challenges the five counts of Rape (Counts 1 to 5) and a single count of Furnishing Beer or Intoxicating Liquor to Underage Person (Count 9) on the grounds of sufficiency.
{¶45} With respect to the Rape counts, Barnes maintains that there was insufficient evidence that he compelled P.P. to submit by force or threat of force to impose a prison term of twenty-five years to life.
{¶46} When an offender is convicted of Rape and “[t]he other person is less than thirteen years of age,” “the court shall impose * * *[i]f the offender purposely compels the victim to submit by force or threat of force * * * a minimum term of twenty-five years and a maximum of life imprisonment.”
{¶47} The Ohio Supreme Court has held that “[a] person in position of authority over a child under thirteen may be convicted of rape of that child with force pursuant to
We recognize that it is nearly impossible to imagine the rape of a child without force involved. Clearly, a child cannot be found to have consented to rape. However, in order to prove the element of force necessary to sentence the defendant to life imprisonment, the statute requires that some amount of force must be proven beyond that force inherent in the crime itself. Yet “‘[f]orce need not be overt and physically brutal, but can be subtle and psychological. As long as it can be shown that the rape victim‘s will was overcome by fear or duress, the forcible element of rape can be established.‘” Eskridge, 38 Ohio St.3d at 58-59, 526 N.E.2d at 306, citing State v. Fowler (1985), 27 Ohio App.3d 149, 154, 27 OBR 182, 187, 500 N.E.2d 390, 395.
{¶48} We find that sufficient evidence existed that Barnes compelled P.P. to submit by force or threat of force to sustain the Rape convictions. Common to all the counts is the fact that Barnes held a position of authority over P.P. – her father trusted
{¶49} It is worth noting that P.P. had been living in Ohio for less than a month when the abuse started. She did not have a firm relationship with her father and no prior experience with her cousin Barnes. It is also worth noting that P.P. claimed that she was molested in Texas although the matter was not pursued. When P.P.‘s father confronted Barnes about her allegations, he reproached him with, “after everything you knew that kid went through down in Texas, man, you knew she was abused down there.” When asked why she did not refuse to go with Barnes, P.P. explained: “If you‘re a ten-year-old girl who has been raised on always, you know, respecting your elders and not knowing whether people are going to believe you or if you‘re going to get hurt physically and, you know, you‘re already mentally exhausted from lying, it‘s kind of hard * * *.”
{¶50} With respect to the first two counts of Rape, on New Year‘s Eve and New Year‘s Day, we note P.P.‘s testimony that she believed he stopped because she was uncomfortable (“I wasn‘t saying anything“) and he did not want her “to freak out on him.” While this testimony is of dubious value as to what Barnes was actually thinking, it does demonstrate P.P.‘s own state of mind during the incidents. Notably, these two incidents were followed by several months of grooming activity until the sexual conduct escalated in May. Particular to the latter three counts of Rape, in December 2020, we note that Barnes had been driving P.P. around all night and that they had been drinking. When
{¶51} Barnes also argues under this assignment of error that there was insufficient evidence to convict him of Furnishing Beer or Intoxicating Liquor to Underage Person as charged in Count 9 (December 2020), i.e., that he did “buy beer or intoxicating liquor for an underage person” or that he did “furnish it to an underage person.”
{¶52} Whether Barnes purchased the beer to share with P.P. or not is irrelevant. It was his beer and he allowed her to drink it. The evidence is that Barnes purchased beer and that he, his friend, and P.P. drank it while driving around. This court has construed “furnish” to mean “supply” and “provide.” State v. Skaggs, 97 Ohio App.3d 15, 19, 646 N.E.2d 190 (11th Dist.1994). That fairly describes Barnes’ conduct in allowing
{¶53} The first assignment of error is without merit.
{¶54} In the third assignment of error, Barnes argues that there was insufficient evidence of venue to sustain the convictions related to the December 2020 exploring episode, i.e., Rape (Counts 3 to 5) and Furnishing Beer or Intoxicating Liquor to Underage Person (Count 9).
{¶55} “Under Article I, Section 10 and
{¶56} On the night in question, J.J. testified as follows regarding the time between dropping Barnes’ friend off and the sexual incidents behind a church: “At this point, I had no idea where we were because we drove around for, like, maybe an hour [after dropping the friend off]. I had no idea what city or what county we were in, but we were pretty close. That‘s all I knew.” Barnes maintains that this testimony is insufficient to prove that the conduct occurred in Trumbull County.
{¶58} The third assignment of error is without merit.
{¶59} In the second assignment of error, Barnes argues that his convictions are against the manifest weight of the evidence, primarily on the grounds that “P.P.‘s testimony in this case is questionable as her veracity is doubtful at best.” Brief of appellant at 17. He notes the considerable evidence that P.P. is not always truthful. As she confided in her journal, “I still lie and I can never tell the truth.” That she would lie and
{¶60} Barnes also points out that there were discrepancies between the testimony given by the State‘s witnesses. For example, P.P.‘s testimony regarding the incident with the journal differed from her father‘s (she testified that she explained the journal entry as fantasy and he testified that she claimed it was about a boy in Texas). Barnes asserts that portions of P.P.‘s testimony are inherently incredible, such as her sneaking out the bathroom window without waking the house guests or dogs or that she would sneak out the bathroom window when her bedroom had its own window. Finally, Barnes complains of the lack of substantive police investigation to corroborate P.P.‘s allegations and lack of corroborating physical evidence.
{¶61} Although Barnes raises valid points for consideration, his arguments do not compel the conclusion that his convictions constitute a manifest miscarriage of justice such that a new trial must be ordered. None of the points raised by Barnes necessarily demonstrate that P.P. was fabricating the allegations against him. Moreover, there is corroborating evidence to support those allegations. The journal entry is evidence of sexual conduct between P.P. and Barnes. After the journal‘s discovery, Barnes continued to interact with P.P. even without her father‘s knowledge. P.P.‘s account of the incident in Waddell Park is no more unlikely than Barnes’ account, i.e., it is just as probable that she was present as it is that he would have told her about running in the park one morning. Barnes admitted that his girlfriend discovered them engaged in sexual activity. His explanation that P.P. entered his home and initiated the activity without his awareness is
{¶62} When considering the evidence in the record on balance, the present case is one in which deference to the trier of fact‘s resolution of conflicts in the evidence is merited. State v. Wymer, 11th Dist. Trumbull No. 2021-T-0014, 2022-Ohio-4795, ¶ 47 (“[w]hile an appellate court engages in a limited weighing of the evidence considering challenges based on the manifest weight of the evidence, the court nevertheless shows some deference to the trier of fact‘s determinations regarding the import and credibility of the evidence“) (cases cited).
{¶63} The second assignment of error is without merit.
{¶64} For the foregoing reasons, Barnes’ convictions are affirmed. Costs to be taxed against the appellant.
JOHN J. EKLUND, P.J,
MARY JANE TRAPP, J.,
concur.