STATE OF OHIO, JEFFERSON COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO VS. RANDY G. BARNHART
CASE NO. 09 JE 15
SEVENTH DISTRICT
June 30, 2010
2010-Ohio-3282
Hon. Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro
Criminal Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 08 CR 131
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Thomas R. Straus, Prosecuting Attorney, Jefferson County Justice Center, 16001 State Route 7, Steubenville, Ohio 43952
For Defendant-Appellant: Atty. Kristopher M. Haught, Scarpone & Associates, 2021 Sunset Boulevard, Steubenville, Ohio 43952
OPINION
WAITE, J.
{2} Appellant was indicted on October 1, 2008, on four counts of rape of a child less than 13-years old,
{3} On April 10, 2009, counsel filed a motion in limine to exclude the testimony of A.W., T.W. and B.W., three stepdaughters of Appellant who had allegedly been sexually molested by him in a manner similar to the rape of M.B. On April 13, 2009, the court provisionally sustained the motion in limine subject to the development of testimony at trial.
{4} Jury trial began on April 14, 2009. M.B. testified about more than 20 sexual encounters with Appellant. She testified that Appellant gave her a magazine called “Family Love,” with particular stories highlighted dealing with fathers having sex with their daughters. The stories included: “Do Me Daddy“; “Father‘s Cock of Gold“; and “Pop in my Ass“. (Tr., pp. 109-112.) She testified that after she moved with Appellant to his home at 503 Railroad Avenue in Steubenville, Appellant would tell her where they were going to have sex in the house. She explained that Appellant had sex with her while teaching her how to play strip poker. Appellant
{5} Steubenville Detective Jean-Philippe Rigaud testified that he searched Appellant‘s home at 503 Railroad Avenue and found the magazine called “Family Love.” The magazine had a number of sections highlighted that discussed a father having sex with his daughter.
{6} Steubenville Detective Erik Dervis testified that he participated in a taped interview of Appellant on August 15, 2008, and during that interview Appellant confessed to various instances of rape involving M.B. Appellant moved into the house at 503 Railroad Avenue in February, 2006. (Tr., p. 163.) After he moved there, he began taking nude photographs of M.B. after they played strip poker. (Tr.,
{7} The state introduced into evidence the audio tape of the interview Appellant gave to Detective Dervis. The tape was played for the jury to hear. During the early part of the interview, Appellant denied having any type of sexual contact with M.B. (Tr., p. 204.) As the interview progressed, Appellant admitted to touching, rubbing and massaging M.B.‘s vagina and anus. (Tr., pp. 204, 207.) He stated that the sexual encounters with M.B. started when he moved to Railroad Avenue in Steubenville. (Tr., p. 208.) He stated that he moved to Railroad Avenue in February of 2006. (Tr., p. 226.) He stated that he probably began his sexual encounters with M.B. in January or February, 2007. (Tr., p. 238.) He admitted to placing a condom on his finger and inserting the finger in M.B.‘s vagina. (Tr., pp. 207, 216, 221.) He admitted he had some type of sexual encounter with M.B. “five or six times“. (Tr., p. 240.) He admitted performing cunnilingus on M.B. between one and five times. (Tr., p. 215.)
{8} He admitted that he attempted to have vaginal intercourse with M.B. in April of 2007, and he licked her vagina at that same time. (Tr., p. 244.) He admitted that he performed oral sex on M.B. in August, 2008, just a week before his police interview took place. (Tr., p. 239.) He stated that M.B. did not like it when he
{9} He stated that he never penetrated M.B. with his penis because he could not achieve an erection. (Tr., p. 235.) He related his inability to sustain an erection to a condition called Bell‘s Palsy. He stated that he was given steroids to cure the condition. (Tr., p. 235.) He stated that he took steroids for six months and he could no longer become aroused after he started taking the steroids. (Tr., p. 235.) He stated that he started “messing” with M.B. because he thought it could help his problem. (Tr., p. 206.)
{10} Appellant stated that he taught M.B. how to play strip poker, and that he took nude photographs of her while they were playing. (Tr., p. 210.) He stated that he took four or five Polaroid instamatic photographs of M.B. (Tr., pp. 188-189.) Two of the nude photographs were taken in March, 2007, and Appellant would use them to become sexually aroused. (Tr., p. 243.) He stated that he knew it was wrong to take the photographs of M.B. (Tr., p. 186.) He stated that he destroyed the photographs two to five months before his interview with the police in August of 2008. (Tr., pp. 186, 188.) A Polaroid camera and various nude photographs were introduced into evidence, although only a sliver of a photograph of M.B. was found and was admitted at trial. (State‘s Exh. 4.) Some of the nude photographs were pictures of M.B.‘s mother, Patricia Barnhart.
{12} Toward the end of the interview, Detective Anderson asked Appellant: “[D]o you think you have problems with pornography and sex?” Appellant replied: “No, sir, I swear I don‘t.” (Tr., p. 233.)
{13} Dr. Stephen Mascio was called as an expert witness for the state. He testified that he performed a physical examination of M.B. shortly after her last sexual encounter with Appellant in August of 2008. (Tr., p. 247.) He found a tear in the vagina that was indicative of penetration and that was common to cases of rape and molestation. (Tr., p. 275.)
{14} A.W., one of Appellant‘s stepdaughters, was called by the prosecution to testify to refute the assertions in Appellant‘s confession that he was unable to get an erection and could not have committed rape by penile penetration. She testified that she lived with Appellant at 420 Union Avenue in Steubenville. She testified that she moved from Union Avenue to Claysville, Pennsylvania on November 27th, but she could not remember if this was in 2006 or 2007. (Tr., p. 285.) She testified that two days before she moved to Claysville, she saw Appellant‘s penis and it was hard and in a state of arousal. (Tr., p. 289.) Appellant‘s counsel objected to this testimony because A.W. could not remember the exact date in question, but the trial court overruled the objection because both November, 2006 and November, 2007 were
{15} Linda Eveleth of the Ohio Bureau of Criminal Investigation testified that underwear used by M.B. was submitted to BCI for examination, and that DNA testing was performed on it. Prior testimony had established that the underpants were alleged to have been worn by M.B. immediately after having sexual intercourse with Appellant. (Tr., p. 252.) Lab testing revealed that there was semen found in the underwear sample, that the major source was not from Appellant, and that no conclusions could be drawn as to Appellant being a minor source of the semen that was found. (Tr., pp. 328-329.)
{16} B.W., a 12-year old stepdaughter of Appellant, testified that she lived with Appellant and M.B. on Railroad Avenue in Steubenville. (Tr., p. 292.) While she lived there, she was concerned about M.B. because she would come to bed crying every night. (Tr., p. 295.) She also found nude photographs of M.B. and others in the basement of the house inside a briefcase. (Tr., p. 295.)
{17} Patricia Barnhart, M.B.‘s mother, testified that she and Appellant had been married for 13 years, but had not been living together for the past 5 years. (Tr., p. 123.) She was not living with Appellant at the time of the crimes alleged in this case. She testified that she had nine children. She testified that she had been with Appellant since age 13, and that she had her first child with him at age 16. (Tr., p. 138.) She testified that Appellant lived on 503 Railroad Avenue in Steubenville with her daughter M.B. and four of her other children. (Tr., p. 124.) Prior to that, they had
{18} Mrs. Barnhart testified that M.B. came to her house to take a shower and borrowed a pair of black panties. (Tr., p. 128.) Mrs. Barnhart also testified that she gave Appellant nude photographs of herself.
{19} The jury rendered its guilty verdict on April 15, 2009. Appellant was found guilty on all five counts in the indictment. The court held a sentencing hearing on April 16, 2009. The court imposed an indeterminate sentence of ten years to life in prison on the four counts of rape, and five years for the conviction for illegal use of a minor in nudity oriented material. The court ordered all sentences to run consecutively. The court filed its sentencing judgment entry on April 16, 2009, and this appeal followed on April 21, 2009.
ASSIGNMENT OF ERROR NO. 1
{20} “THE TRIAL COURT‘S FINDING OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
{21} Appellant alleges that the state failed to prove that he raped his daughter four times. He contends that there was no proof of penile penetration due to contradictory evidence of the state‘s witnesses and due to Appellant‘s own confession in which he stated he could not achieve an erection. He argues that Patricia Barnhart was not a credible witness and gave contradictory testimony regarding the nude pictures of herself that she had given to Appellant. He claims that
{22} The legal concepts of sufficiency of the evidence and weight of the evidence, although related, are analyzed separately on appellate review. State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541, paragraph two of the syllabus. Sufficiency is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 124 N.E.2d 148. A conviction based on legally insufficient evidence constitutes a denial of due process. Thompkins, at 386-387, citing Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652.
{23} To determine whether sufficient evidence exists to support a conviction, the reviewing court must determine “whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
{24} A verdict that is supported by sufficient evidence may still be against the manifest weight of the evidence. Thompkins, supra, at 387.
{25} “‘The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.‘” Thompkins, supra, at 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
{26} The crimes at issue in this appeal are rape of a minor under age 13 and illegal use of a minor in nudity oriented materials.
{27}
{28} “(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:
{29} “* * *
{30} “(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.”
{31} “Sexual conduct” is defined in
{32} “(A) ‘Sexual conduct’ means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.”
{33} Cunnilingus may be proven without evidence of penetration: “Penetration is not required to commit cunnilingus. Rather, the act of cunnilingus is completed by the placing of one‘s mouth on the female‘s genitals.” State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 86.
{34} The elements of illegal use of a minor in nudity oriented material, as charged in the instant case, are found in
{35} “(A) No person shall do any of the following:
{36} “* * *
{37} “(2) Consent to the photographing of the person‘s minor child or ward, or photograph the person‘s minor child or ward, in a state of nudity or consent to the use of the person‘s minor child or ward in a state of nudity in any material or performance, or use or transfer a material or performance of that nature, unless the
{38} The record contains a wide variety of sources tending to prove Appellant‘s guilt, including Appellant‘s recorded confession and the testimony of M.B. The confession and M.B.‘s testimony overlapped in many areas. M.B. testified that she had more than 20 sexual encounters with Appellant. She testified that the sex would come to an end when the white stuff came out of Appellant‘s penis. Appellant specifically instructed her about sex, and told her when they were going to engage in sex. She described the incident where Appellant put a condom on his finger and inserted it into her vagina. She described playing strip poker with Appellant, and when they were naked, Appellant climbed on top of her and put his penis at least partially into her vagina. She described an encounter in which she was told to take photographs while Appellant was having sex with her. She testified that Appellant put his penis partially into her vagina on that occasion. She described the most recent time that Appellant raped her, in August, 2008, that took place in Appellant‘s bedroom. She again testified that Appellant put his penis into her vagina.
{39} Appellant confessed to a variety of rape crimes, mostly involving cunnilingus. Although Appellant did not admit to rape by penile penetration, he did
{40} Appellant argues that M.B. never testified that there was penile penetration, but the record indicates otherwise. She testified that, on three separate occasions, Appellant‘s penis penetrated her “part way.” (Tr., pp. 102-103, 108.)
{41} Appellant contends that the weight of the evidence, and the lack of credibility of some of the witnesses, particularly that of Patricia Barnhart, weighs against the verdict. It is true that Patricia Barnhart‘s testimony had some inconsistencies, and she corrected herself at times during her testimony. Whether all or part of her testimony was credible was a matter for the jury to decide, and we will not second-guess the jury‘s interpretation of the evidence except in the most egregious cases where it is abundantly clear that the jury has lost its way. The jury in
{42} Appellant contends that the BCI results from testing M.B.‘s panties proves he did not rape her because he was not found to be the major source of semen in the panties. Appellant overstates the importance of the panties and the BCI test results in this case. Appellant himself admitted that he could not have an erection or ejaculate, so one would not expect to find his semen on M.B.‘s clothing. Since the evidence supported at least four rape crimes that did not involve penile penetration, i.e., cunnilingus and digital penetration, the questions surrounding Appellant‘s ability to obtain an erection did not undermine the state‘s case. Additionally, Patricia Barnhart‘s testimony was helpful in providing a possible explanation as to why Appellant‘s DNA was not found to be the major source of semen found in the black panties examined by BCI. Mrs. Barnhart testified that M.B. borrowed black panties from her, and these could have been the panties examined by BCI. There would be little reason for Appellant‘s DNA to be found on Mrs. Barnhart‘s panties because she had not been living with him for five years. The jury also could have simply disbelieved that the black panties were worn by M.B. soon after the most recent rape in August of 2008. The jurors are free to believe some, all or none of the testimony of each witness, and they may separate the credible parts of the testimony from the incredible parts as they wish. State v. Mastel (1971), 26 Ohio St.2d 170, 176, 270 N.E.2d 650. There is nothing particularly difficult in believing that the state recovered panties that might have been connected to one of the rapes, but
{43} There is also substantial evidence establishing that Appellant took or directed the taking of nude photographs of M.B., some of which depicted the two of them having sexual intercourse or sexual contact. The state submitted into evidence the Polaroid camera that Appellant used to take nude photographs of M.B. (State‘s Exh. 3.) Appellant himself admitted taking some of the photographs and ordering M.B. to take some of the photographs. M.B. testified about a number of the photographs, and she identified a fragment of a photograph that showed her bare legs. She testified that Appellant took eight or nine photographs of her with no clothes on. Appellant kept these photographs in his bedroom. There was evidence of other pornographic materials in his bedroom, including naked photographs of Patricia Barnhart and other unidentified females. Appellant admitted that he knew that it was wrong to take these photographs, and he eventually destroyed some of them. He also admitted that he wanted the photographs “[s]o, you know, if I looked at the pictures maybe it would -- I could do this.” (Tr., p. 243.)
{44} The evidence supports the jury‘s verdict regarding all five counts in the indictment, and the jury did not lose its way in convicting Appellant on four counts of rape and one count of illegal use of a minor in nudity oriented material. Appellant‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
{46} Appellant‘s brief only discusses his objections to the testimony of A.W., despite the mention of B.W. in his assignment of error. Our analysis will be restricted to the argument as presented in Appellant‘s brief. Appellant argues that the court should not have allowed A.W. to testify that she had seen Appellant‘s penis in an aroused state because she could not specify the exact time when she saw this happen. A.W. testified that she moved from Union Avenue in Steubenville to Claysville, Pennsylvania on November 27th of either 2006 or 2007, and that the incident with Appellant occurred two days before she moved. Appellant contends that November of 2006 is outside of the time frame relevant to the crimes that were alleged in this case. The charges in the indictment allege that the rapes occurred on or about March, April, and May, 2007 and August 10, 2008. Although A.W.‘s testimony may refer to an incident that occurred a few months before the first alleged rape in March of 2007, it is nevertheless relevant to the facts that the state was required to prove at trial and was admissible as impeachment evidence to rebut a number of assertions in Appellant‘s confession. Appellant‘s argument is not persuasive.
{47} Appellant‘s argument appears to be based primarily on his conclusion that A.W.‘s testimony was either irrelevant or unfairly prejudicial compared to its probative value. Evid.R. 402 establishes that all relevant evidence is admissible. Relevant evidence, though, must be excluded “if its probative value is substantially
{48} We note at the outset that the state had no burden of proof with respect to Appellant‘s ability to sustain an erection. Rape may be proven by evidence of slight penetration, or in the case of cunnilingus, with no penetration at all. Therefore, courts have concluded that “[b]ecause the crime of rape may, according to the statutory definition, be committed even absent the ability to achieve or sustain an erection, whether a defendant is impotent or not is not determinative in convicting him of rape.” State v. Gee, (July 22, 1993), 3d Dist. No. 12-92-9, *4. The state‘s case, though, may be made more difficult if there is evidence of impotence or inability to achieve an erection because the jury may have difficulty believing that any penetration could take place under those conditions.
{49} In this particular case the state had a substantial reason for establishing that the defendant could actually achieve an erection because Appellant‘s taped confession denies that it happened. Thus, any evidence that would show that Appellant could achieve an erection would help corroborate other evidence presented by the state, whereas it might not be relevant or necessary in another rape case where the issue of the defendant‘s ability to engage in penile penetration is uncontested.
{51} Further, courts have held that the state must be afforded considerable latitude in the construction of criminal charges involving child rape or sexual assault because a child of tender years does not have the temporal memory of an adult and may have difficulty remembering exact dates and times. State v. Daniel (1994), 97
{52} If the earlier date of November, 2006, is the correct date as to when A.W. saw Appellant in a state of arousal, the trial court could have found this testimony to be relevant to the first count of rape. Appellant‘s own confession gives a rather broad time frame in which this first rape may have occurred. In Appellant‘s confession he stated that he moved to Railroad Street in Steubenville in February, 2006. He also stated that he first began to have sexual relations with M.B. sometime after he moved to Railroad Street, but he was not sure of the exact date of when the sexual acts first occurred. Appellant‘s confession indicated that he could not achieve an erection during the time he was having sexual encounters with M.B. At times he said his first sexual encounter might have been January of 2007. At other times he thought it might be later, in February or March of 2007. M.B. did not testify as to the exact date of the first rape, but she recalled that all the rapes occurred while she was living with Appellant at the house on Railroad Street. M.B.‘s mother, Patricia Barnhart, did not specify the exact date that M.B. began living with Appellant on Railroad Street, other than to say that it was in 2006. (Tr., pp. 124-125.) Therefore, the evidence at trial indicates that the first rape could have occurred as early as sometime in 2006, or as late as March, 2007.
{54} Appellant also argues that the state provided no scientific or expert evidence that he was able to achieve an erection, but the state was not required to prove anything specific in this regard and it is unclear how expert testimony would have helped the state‘s case. Appellant did not provide expert evidence as to his alleged inability to achieve an erection, because there was no need for rebuttal expert testimony on that point. Whether or not a man is in a state of arousal is certainly something that could be observed by a lay witness.
{55} A.W.‘s testimony had substantial probative value and it was within the trial court‘s discretion to admit it under Evid.R. 403. Therefore, Appellant‘s second assignment of error is overruled.
Conclusion
{56} Neither of Appellant‘s assignments of error have merit. There is substantial evidence supporting at least four rape convictions and one count of illegal use of a minor in nudity oriented material. Appellant himself confessed to at least four instances of rape, and the victim, M.B., also testified to at least four separate and distinct instances of rape. Appellant also testified that he either took or ordered M.B.
Vukovich, P.J., concurs.
DeGenaro, J., concurs.