STATE OF OHIO, PLAINTIFF-APPELLEE, v. JASON G. BENDER, DEFENDANT-APPELLANT.
CASE NO. 14-19-22
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
March 2, 2020
2020-Ohio-722
Aрpeal from Union County Common Pleas Court, Trial Court No. 2018-CR-0168. Judgment Affirmed.
OPINION
APPEARANCES:
Charles A. Koenig for Appellant
David W. Phillips and Melissa A. Chase for Appellee
{1} Defendant-appellant, Jason G. Bender (“Bender“), appeals the May 29, 2019 judgment entry of sentence of the Union County Court of Common Pleas. We affirm.
{2} This case stems from a June 28-29, 2018 incident during which Bender restrained the victim, K.W., with ropes around her neck, arms, and legs, and by binding her hands and feet with ratchet straps and suspending her from the rafters of a basement ceiling, then brutally beating and raping her. On July 13, 2018, Bender was indicted on four counts: Count One of felonious assault in violation of
{3} On January 9, 2019, the State filed a motion requesting that the trial court declare K.W. a court‘s witness. (Doc. No. 42).
{4} On April 22, 2019, the State filed a motion to dismiss the sexually violent predator specification alleged in Counts Two аnd Three and the criminal-gang-activity specification alleged in Count Three of the indictment, which the trial court dismissed that same day. (Doc. Nos. 75, 76).
{5} The case proceeded to a jury trial on April 22-24, 2019. On April 24, 2019, the jury found Bender guilty of all the counts and specifications in the indictment. (Doc. Nos. 78, 79, 80, 81). (See also Doc. No. 84). On May 29, 2019, the trial court sentenced Bender to 7 years in prison on Count One, 10 years in prison on Count Two, 10 years in prison on Count Three, 30 months in prison on Count Four, and 3 years in prison on the firearm specification. (Doc. No. 87). The trial court ordered Bender to serve consecutively the prison terms imposed under Counts One, Two, and Three, and the firearm specification. (Id.). Further, the prison term imposed as to Count Four was ordered to be served concurrently to the consecutive prison terms imposed as to Counts One, Two, and Three, and the firearm
{6} Bender filed a notice of appeal on June 18, 2019 and raises three assignments of error for our review. (Doc. No. 93).
Assignment of Error No. I
Appellant was deprived of his constitutional rights to due process and to confront his accusers in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution, as a consequence of the trial court permitted [sic] hearsay testimony from a medical witness regarding statements in the medical record that were not admissible under any hearsay exception, thereby preventing appellant from exercising his right to confront in a meaningful way.
{7} In his first assignment of error, Bender argues that the trial court erred by admitting testimony of Andi Stevens (“Stevens“), a forensic nurse coordinator and sexual assault nurse examiner (“SANE“) with OhioHealth, as to statements made to her by K.W. Bender argues that the admission of Stevens‘s testimony (i.e., K.W.‘s statements) violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. He further argues that Stevens‘s testimony was inadmissible hearsay evidence.
Standard of Review
{8} Generally, the admission or exclusion of evidence lies within the trial court‘s discretion, and a reviewing court should not reverse absent an abuse of
Analysis
{9} We will begin by addressing whether the admission of Stevens‘s testimony violated Bender‘s Sixth Amendment rights. The Confrontation Clause to the Sixth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be сonfronted with the witnesses against him * * * .” Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354 (2004), quoting the Confrontation Clause. See also State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 34; State v. McNeal, 3d Dist. Allen No. 1-01-158, 2002-Ohio-2981, ¶ 43, fn. 13.
The United States Supreme Court has interpreted [the Sixth Amendment right to confrontation] to mean that admission of an out-
Maxwell at ¶ 34, citing Crawford at 53-54. The United States Supreme Court “did not define the word ‘testimonial’ but stated that the core class of statements implicated by the Confrontation Clause includes statemеnts ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.‘” Id., quoting Crawford at 52.
{10} “Only testimonial hearsay implicates the Confrontation Clause.” McKelton at ¶ 185. “[T]estimonial statements are those made for ‘a primary purpose of creating an out-of-court substitute for trial testimony.‘” Id., quoting Maxwell at ¶ 40, quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143 (2011). That is, “[t]o rank as ‘testimonial,’ a statement must have a ‘primary purpose’ of ‘establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.‘” Bullcoming v. New Mexico, 564 U.S. 647, 659, 131 S.Ct. 2705, 2714 (2011), fn. 6, quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266 (2006). “The key issue is what constitutes а testimonial statement: ‘It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.‘” State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, ¶ 33, quoting Davis at 821. Nevertheless, “[t]here is also no dispute that the
{11} In this case, Bender argues that the trial court erred by admitting Stevens‘s testimony regarding statements made to her by K.W.-namely, a “narrative history” provided to Stevens‘s by K.W. at the hospital. However, evеn if any of K.W.‘s statements to Stevens were testimonial in nature, there was no constitutional error since the victim testified at trial and was subject to cross-examination. “Admission of testimonial statements against a party is a constitutional error when that party does not have the opportunity to cross-examine the declarant.” State v. Durdin, 10th Dist. Franklin No. 14AP-249, 2014-Ohio-5759, ¶ 30, citing State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, ¶ 36, citing Crawford at 68. “Consequently, the Confrontation Clause does not require exclusion of prior statements of a witness who testifies at trial.” State v. Lykins, 4th Dist. Adams No. 18CA1079, 2019-Ohio-3316, ¶ 90, citing California v. Green, 399 U.S. 149, 164, 90 S.Ct. 1930 (1970), and citing Arnold at ¶ 66, State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 64, State v. Kersbergen, 12th Dist. Butler No. CA2014-10-218, 2015-Ohio-3103, ¶ 68, State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 48, and State v. Isa, 2d Dist. Champaign No. 07-CA-37, 2008-Ohio-5906, ¶ 16. Therefore, because K.W. testified at trial, and Bender was able to fully cross-examine her regarding her out-of-court statements, Stevens‘s testimony did not violate the Confrontation Clause under the facts presented. Id. at ¶ 91; State v. Rose, 12th Dist. Butler No. CA2011-11-214, 2012-Ohio-5607, ¶ 47, citing Gray at ¶ 48.
{12} Having determined that Stevens‘s testimony was not barred by the Confrontation Clause, we must now address whether her testimony was admissible under the Ohio Rules of Evidence. See State v. Martin, 5th Dist. Tuscarawas No. 2015AP0010, 2016-Ohio-225, ¶ 52, citing State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, ¶ 165. See also Lykins at ¶ 92. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
{14} “In sexual assault cases such as the case at bar, there is often testimony from a sexual assault nurse. Similar to the dual role of a social worker interviewing a child who may be a victim of sexual abuse, these nurses often perform a dual role involving both medical diagnosis and treatment and the investigation and gathering
{15} We conclude that Stevens‘s testimony was properly admitted as a statement made by a victim for purposes of medical diagnosis or treatment. See State v. Wallace, 3d Dist. Union No. 14-10-20, 2011-Ohio-1728, ¶ 18. At trial, Stevens testified that her “role as a Forensic Nurse [is to] do a history of the events from the assault that” caused the victim to seek medical treatment. (Apr. 22, 2019
{16} Although narrative accounts may reveal information subsequently used by law enforcement in a criminal prosecution, “[n]arrative accounts can be reasonably pertinent in establishing a potential diagnosis or treatment.” State v. Warman, 12th Dist. Butler No. CA2016-02-029, 2017-Ohio-244, ¶ 70 (Piper, J., concurring). See also id. (“Even though the victim‘s narrative account offered to medical personnel can subsequently be used by law enforcement in a criminal prosecution does not prevent the statement from being admitted into evidence pursuant to
{17} Even if we were to conclude that Stevens‘s testimony was inadmissible hearsay, the error would be harmless. See Id. at ¶ 21. “Any error in the admission of hearsay is generally harmless where the declarant of the hearsay statement is cross-examined on the same matters and the seemingly erroneous evidence is cumulative in nature.” Id., quoting In re M.E.G., 10th Dist. Franklin Nos. 06AP-1256, 06AP-1257, 06AP-1258, 06AP-1263, 06AP-1264, and 06AP-1265, 2007-Ohio-4308, ¶ 32. Indeed, as we previously addressed, the victim was
{18} Moreover, Bender‘s argument that Stevens‘s testimony was inadmissible hearsay because “Nurse Stevens [sic] primary reason for performing her specialized exam on [K.W.] was to obtain evidence of a crime” is misplaced. (Appellant‘s Brief at 12). See Wallace at ¶ 19; Rose at ¶ 42. Instead, Bender‘s argument is relevant to whether the victim‘s statements were testimonial for purposes of the Confrontation Clause. See Wallace at ¶ 19; Rose at ¶ 42. However, because we already concluded that no Confrontation Clause violation occurred in this case, Bender‘s argument is specious.
{19} For these reasons, Bender‘s first assignment of error is overruled.
Assignment of Error No. II
Appellant was deprived of his constitutional rights to due process and effective assistance of counsel in violation of his Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution, when the trial court called the victim as a court witness pursuant to
Evid.R. 614 , and, further, when appellant‘s trial counsel failed to object to the court calling the victim pursuant toEvid.R. 614 .
Standard of Review
{21} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In order to show counsel‘s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel‘s actions were not trial strategies prompted by reasonable professional judgment. Strickland at 687. Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995). Rather, the errors complained of must amount to a substantial violation of counsel‘s essential duties to his client. See State v. Bradley, 42 Ohio St. 3d 136, 141-142 (1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on other grounds, 438 U.S. 910, 98 S.Ct. 3135 (1978).
Analysis
{23} On appeal, Bender alleges that his trial counsel was ineffective for failing to object to the trial court designating K.W. as a court‘s witness. Under
{25} Bender‘s second assignment of error is overruled.
The evidence adduced at trial is insufficient as a matter of law to support appellant‘s conviction on the charge of rape.
{26} In his third assignment of error, Bender argues that his rape conviction is based on insufficient evidence. In particular, Bender contends that his rape conviction is based on insufficient evidence because the State presented insufficient evidence that he compelled K.W. to engage in sexual conduct by force or threat of force.
Standard of Review
{27} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, “[t]he relevant inquiry is 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.” Id. “In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,
Analysis
{28}
{29} In addressing the force-or-threat-of-force language under the rape statute, the Supreme Court of Ohio сlarified that “[a] defendant purposely compels another to submit to sexual conduct by force or threat of force if the defendant uses physical force against that person, or creates the belief that physical force will be
A person acts purposely when it is the person‘s specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is the offender‘s specific intention to engage in conduct of that nature.
{30} In rape cases in which the victim is not a child, the State “must prove force or threat of force either through direct evidence of such or by inference where the defendant overcame the victim‘s will by fear and duress.” State v. Rupp, 7th Dist. Mahoning No. 05 MA 166, 2007-Ohio-1561, ¶ 33. See also Stevens at ¶ 20 (““[T]he key inquiry for determining whether the State prеsented sufficient evidence on the element of force is whether the ‘victim‘s will was overcome by fear or duress.‘“), quoting State v. Wine, 3d Dist. Auglaize No. 2-12-01, 2012-Ohio-2837, ¶ 40, quoting In re Forbess, 3d Dist. Auglaize No. 2-09-20, 2010-Ohio-2826, ¶ 40, citing State v. Heft, 3d Dist. Logan No. 8-09-08, 2009-Ohio-5908, ¶ 88, citing State v. Eskridge, 38 Ohio St.3d 56, 58-59 (1988). “[I]f the defendant created the belief that physical force will be used in the absence of submission, then threat of force
{31} On appeal, Bender contends that the State presented insufficient evidence that he purposely compelled K.W. to submit to the sexual conduct by force or threat of force because K.W.‘s testimony that she “thought that her having sex
In fact, the statement Nurse Stevens said [K.W.] made to her, that having sex with [Bender] ‘usually’ makes things better and makes [Bender] leave her alone, shows that this sort of sexual behavior between [Bender] and [K.W.] is not unique to the events of June 28-29, but appears to be a normal part of their non-traditional relationship.
(Id.).
{32} Bender‘s argument is misplaced. See Worrell at ¶ 45 (concluding that the victim‘s “failure to physically resist does not negate the forcible element of the rapes“), citing State v. Hurst, 10th Dist. Franklin No. 98AP-1549, 2000 WL 249110, *4 (Mar. 7, 2000); Rupp at ¶ 42 (noting that “a victim need not risk physical damage or even death to later prove that she was raped“). K.W.‘s testimony does not negate the forcible element of rape under
{33} At trial, K.W. testified that (at the time of the incident) she was in a romantic relationship with Bender and the two were living together. (Apr. 23, 2019 Tr., Vol. I, at 74-75). K.W. testified that (during the evening of June 28, 2018), she and Bender began arguing after Bender discovered that she was moving her things out of the rеsidence that she shared with him. (Id. at 82). The State presented evidence that the argument progressed into a physical altercation during which Bender “tied [her] up down in the basement” by placing “ropes” “around [her] neck and arms and legs,” then by binding her hands and her feet with “ratchet straps” and suspending her from the rafters. (Id. at 84-85); (Apr. 22, 2019 Tr., Vol. I, at 128); (State‘s Ex. 4). Then, Bender “continued hitting” her with “[h]is fist“; “a piece of wood“; “a pole“; a slingshot; a pan; and a gun. (Apr. 22, 2019 Tr., Vol. I, at 85-86); (Apr. 23, 2019 Tr., Vol. I, at 130); (State‘s Ex. 4). “Bender had [her] sit there on all fours kicking [her] and then he used a back whip. It‘s a leather strap with heаvy objects on it. Leather strap with rebar and a ball bearing on it.” (Apr. 23, 2019 Tr., Vol. I, at 130-131); (State‘s Ex. 4). K.W. “had to sit there on [her] hands and knees when he put the knife * * * in her vagina.” (Id. at 131); (Id.). Stevens also testified
{34} According to Stevens, K.W. reported that Bender would not permit her to eat or sleep because “that is part of the game, too.” (Apr. 23, 2019 Tr., Vol. I, at 132); (State‘s Ex. 4). The State also presented evidence that (at some point during the assault), K.W. was naked and that Bender would not return K.W.‘s clothes to her. (Apr. 23, 2019 Tr., Vol. I, at 130); (State‘s Ex. 4). Moreover, K.W. testified that Bender forced her to cut off her hair, then he used “clipper things” to make it shorter. (Apr. 22, 2019 Tr., Vol. I, at 89-90). (See also Apr. 23, 2019 Tr., Vol. I, at 131); (State‘s Ex. 4). K.W. further testified that she was screaming during the assault but Bender put “rags and bandanas” in her mouth to muffle her screams. (Apr. 22, 2019 Tr., Vol. I, at 131). (See also Apr. 23, 2019 Tr., Vol. I, at 129); (State‘s Ex. 4). According to K.W., Bender hit and kicked her over her entire body and that the altercation lasted “until the next morning.” (Apr. 22, 2019 Tr., Vol. I, at 86, 89). Importantly, K.W. testified that she was “scared” of Bender during the June 28-29, 2018 incident. (Id. at 127).
{35} Mindful of her fear, K.W. testified that she engaged in sexual conduct (“morе than once“) with Bender during the assault “because [she] thought it would calm him down.” (Id. at 88). K.W. reported to Stevens that “[u]sually [engaging in sexual conduct with Bender] makes things better and he leaves [her] alone for a little
{36} Basеd on the totality of the circumstances of this case, a rational trier of fact could infer that K.W.‘s state of fear or duress during a prolonged period of torture was such that she was compelled to submit to the sexual conduct to end the torture. See Thomas, 2019-Ohio-1916, at ¶ 27 (concluding that the victim‘s testimony “regarding past incidents of physical abuse” and that she engaged in sexual conduct with Thomas because “she wanted the abuse to end and for Thomas to leave” was relevant to whether Thomas purposely compelled the victim to engage in sexual сonduct by force or threat of force). See also State v. Rucker, 1st Dist. Hamilton No. C-110082, 2012-Ohio-185, ¶ 17 (concluding that evidence that Rucker struck the victim with belts—even if the beatings occurred at times other than the sexual assaults—was relevant to whether the victim‘s will had been overcome by fear or duress); Hurst, 2000 WL 249110, at *4 (noting that the absence of physical resistance “highlights the frightful experiences and threat of force present during the sexual encounter“). Accordingly, a rational trier
{37} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and WILLAMOWSKI, J., concur.
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