State v. EstesState v. Estes
Rendered on the 12th day of April, 2019.
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Greene County Prosecutor‘s Office, Appellate Division, 55 Greene Street, 1st Floor, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
MICHAEL R. PENTECOST, Atty. Reg. No. 0036803, 117 S. Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant
{¶ 1} Andre Estes appeals from his convictions for rape of a person under 13 years of age and for attempted rape of a child under 10 years of age. Estes contends that the trial court erroneously admitted evidence under
I. Procedural History and Evidence Presented
{¶ 2} In August 2016, Estes was indicted on three counts related to engaging in sexual conduct with his then seven-year-old daughter: one count of rape of a person under 13 years of age, in violation of
{¶ 3} The state‘s evidence included Estes‘s cell phone. Estes moved for an independent forensic examination of the phone, which the trial court granted. Examination of the phone revealed web-browser history that included pornographic search terms and websites. Estes filed a motion in limine to exclude this evidence as evidence of other crimes, wrongs, or acts inadmissible under
{¶ 4} The case proceeded to a jury trial. At trial, the state presented the testimony of several witnesses, including the victim, “Jane”1; Jane‘s mother and Estes‘s former wife;
{¶ 5} Jane, who was 8 years old at the time of the trial, testified that, in her bedroom in her family‘s home, her father had “put his private in my bottom.” (Tr. 34.) According to Jane, he did this while she laid on her stomach on her bed without pants or underwear, and he stood behind her. She said that when Estes did this, it hurt a little. Jane also testified that Estes “put his private in my mouth.” (Tr. 38.) This too happened in her bedroom; she stated that she was sitting on her bed and he was standing in front of her. Jane said that his penis felt a little hard in her mouth. When Estes removed his penis from her mouth, said Jane, white stuff fell from it onto her pink “Hello Kitty” rug. Jane testified that Estes told her not to tell anyone, because it was a secret. She also said that before they went to her room, Estes told her brothers to watch the baby.
{¶ 6} Jane‘s mother testified that she and Estes married in 2009 and had four children; they were married at the time of the alleged offenses but divorced in 2017. Mother testified that, around the first weekend in June 2016, she went to Alabama to pick up her son from his grandmother‘s house and was gone for five days. Near the end of June, Mother discovered that pornographic videos had been viewed in the YouTube app on her cell phone, which Jane had just been using. Mother confronted her and asked Jane if “anybody [had] ever done anything to you that you‘ve seen on the videos?” (Tr. 145.) Mother said that Jane hesitated and looked afraid but eventually she said, “daddy.” (Tr. 149.) “She said that her daddy had put his penis in her mouth and in her bottom,”
{¶ 7} Mother took Jane to be examined at Dayton Children‘s Hospital and later took her to Michael‘s House Child Advocacy Center. The night that Jane told Mother about what Estes had done, Mother called the police, who came and picked up Estes. When he returned, said Mother, he grabbed some belongings from the house “[b]ecause his mother and his brother w[ere] there from Tennessee to pick him and his two sons up.” (Tr. 191.) Mother also testified that Estes “seemed to be upset or angry about our sex life.” (Tr. 187.) “I think he wanted me to be more sexually active than what I already was in the marriage,” she said. (Tr. 188.) Mother denied making up these allegations and denied coaching Jane on what to say. Mother also denied searching for pornography on Estes‘s phone and said that she and Estes never had sex in Jane‘s room.
{¶ 8} Kelly Azzam was the pediatric sexual assault nurse examiner at Dayton Children‘s Hospital who examined Jane. She testified that Jane told her that there had been no vaginal penetration but that there had been anal and oral penetration. Jane specifically told Azzam that her father had been putting his penis in her mouth and bottom.
{¶ 9} The police collected the “Hello Kitty” rug from Jane‘s room and sent it to the Ohio Bureau of Criminal Investigation (BCI) for analysis. Patrick Crawford was the forensic scientist at the BCI who analyzed the rug, and he testified that he found semen on it. Timothy Augsback, another forensic scientist at the BCI, testified that he compared the DNA of the semen found on the rug with a sample of DNA taken from Estes and concluded that the DNA matched.
{¶ 10} Teresa Wiles was the manager of Michael‘s House Child Advocacy Center and conducted an initial forensic interview with Jane. Wiles testified that Jane told her that her father put his “private” in her bottom and in her mouth. Jane said that beforehand, her father asked her brother to watch the other kids. Jane told Wiles that when her father put his private in her bottom, she was sitting on the front of the bed with her pants and underwear off and that it hurt a little bit. She also told Wiles that she had to rub her father‘s private and put it in her mouth and that it was nasty and tasted like urine. Jane further told Wiles that white stuff came out of his private and fell on her clean carpet and her bottom. On cross-examination, Wiles testified that Jane had told her both that the baby was not there and that Estes had told the other children to watch the baby. Jane also told her that this happened in the shower, the living room, her mom‘s room, and her own room. Wiles testified that it was common for there to be inconsistencies in disclosures from a child victim of sexual abuse. She explained: “Well, when kids are telling different people their story it‘s just like us as adults, we‘re unlikely to give every detail over and over as we tell each individual. We may leave out something. We may add something that we remember. I always think of myself going to a grocery store and if someone asked me everything that
{¶ 11} Amy Ferguson also worked at Michael‘s House and performed a follow up forensic interview with Jane. Ferguson testified that Jane told her too that Estes put his private in her bottom, while she was on the bed and he was standing next to the bed, and that it hurt a little. Jane said that he also made her put his private in her mouth, while she was sitting and he was standing, and that white stuff came out of his private and spilled onto her “Hello Kitty” rug. Jane told Ferguson that it happened only in her bedroom, on her bed, and that white stuff got on her bottom, which Estes wiped off with a towel. Jane told Ferguson that Estes did not put anything on her bottom before putting his private in.
{¶ 12} Christopher Cox was the digital forensic examiner at Binary Intelligence who performed the forensic examination of Estes‘s cell phone. Cox testified that his examination revealed web history that included a number of pornographic websites relating to fathers engaging in sexual activity with their daughters. For example, one of the sites was titled “Real father f***s naughty teen daughter very hardcore; Xvideos.com.” (Tr. 786.) There were also web searches that used terms like “real taboo” and “real father and daughter webcams.” (Tr. 823, 825.) Cox said that the name associated with all of the accounts on the phone was Andre Estes, that the searches and websites were all viewed in Xenia, and that the timestamps on the web history entries were all between 7:45 a.m. and 8:52 a.m. on June 2, 2016. Cox said that a timestamp could be changed but only by a person with the relevant technical knowledge. He said that he did not see any evidence of tampering with the files on Estes‘s phone.
{¶ 14} The state dismissed the sexual-battery charge. During its charge to the jury, the trial court gave a limiting instruction that evidence about the commission of other acts could be used to prove only Estes‘s “opportunity, intent, preparation, and or plan to commit the offenses charged” and could not be used to “prove the character of the Defendant in order to show that he acted in conformity with that character.” (Tr. 1046.) The jury found Estes guilty of the rape and attempted-rape charges and the mandatory prison-term specification. The trial court sentenced Estes to life in prison without the possibility of parole for rape and to a mandatory 10 years to life in prison for attempted rape, to be served consecutively.
{¶ 15} Estes appeals.
II. Analysis
{¶ 16} Estes presents two assignments of error for our review. The first challenges the admission of the web history and search terms recovered from his cell phone. The second asserts that his conviction was against the manifest weight of the evidence.
A. Admission of web history
THE TRIAL COURT ERRED IN ADMITTING OVER DEFENSE OBJECTION EVIDENCE OF INTERNET SEARCHES AND WEB SITE DATA EXTRACTED FROM APPELLANT‘S CELL PHONE.
{¶ 18}
{¶ 19} The Ohio Supreme Court has laid out a three-step analysis to determine whether other-acts evidence is admissible. “The court must consider (1) whether the other-acts evidence is relevant under
{¶ 20} Estes does not dispute that the first and second steps of the analysis are satisfied. The first step asks whether the web history and search terms are relevant to making any fact that is of consequence to the determination of this action more or less probable than it would be without the evidence. The web history related to father/daughter sexual activity and the searches were at or about the time of the alleged sexual encounters involving Estes and Jane. The state‘s purpose in presenting the web history and search terms in this case was to show Estes‘s motive, intent, or plan to engage in sexual activity with his daughter. Compare State v. Dolman, 6th Dist. Williams No. WM-10-007, 2010-Ohio-5505, ¶ 23-24 (photographs found on the defendant‘s computer showing scantily clothed or nude young girls in erotic or suggestive poses tend to show the defendant‘s sexual interest in young females like the victims, that is, his motive, plan, or intent in photographing them in the nude or in their underwear). The second step asks whether the web history and search terms were presented to prove Estes‘s character in order to show activity in conformity therewith. The state did not offer the web history and search terms to show that raping his daughter was in conformity with Estes‘s character. Indeed, the trial court gave the jury a limiting instruction that this evidence could not be used for that purpose. “We presume the jury followed those instructions.” (Citations omitted.) Williams at ¶ 23.
{¶ 22} We conclude that
{¶ 23} The first assignment of error is overruled.
B. Manifest weight of the evidence
{¶ 24} The second assignment of error alleges:
THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 25} Estes contends that inconsistencies in Jane‘s and Mother‘s testimony and Mother‘s lack of credibility undermined the jury‘s guilty verdicts. Estes does not cite specific inconsistencies, but he refers us to the trial transcript where, he says in his brief, “[d]etails of these inconsistencies are succinctly outlined and summarized in defense counsel‘s closing argument.”
{¶ 26} “A weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” (Citation omitted.) State v. Cassell, 2d Dist. Clark No. 09CA0064, 2011-Ohio-23, ¶ 46. When a conviction is challenged on appeal as being against the manifest weight of the evidence, ” ‘[t]he 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.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of fact to resolve. Cassell at ¶ 48, citing State v. DeHass, 10 Ohio St.2d 230,
{¶ 27} Estes argues that the evidence reveals that Jane was inconsistent as to what had happened, when, where, how often and in the details of the specific acts alleged to have occurred. The state acknowledges that there were inconsistencies in Jane‘s testimony concerning facts like her position on the bed, whether the baby was in the house during the abuse, where in the house the abuse occurred, whether Jane had ever seen pornographic videos, and whether Estes used Vaseline and baby oil. But Wiles, the Michael‘s House manager, testified that it is common for there to be inconsistencies in disclosures from a child victim of sexual abuse. Furthermore, none of the inconsistencies directly undermined the finding that Estes committed the two acts of sexual conduct, and Jane never wavered from her claim that Estes put his penis in her bottom and in her mouth. The only conflicting evidence was Estes‘s own denial testimony.
{¶ 28} Estes also contends that Mother‘s testimony was not credible because of numerous inconsistencies and factual discrepancies and because she was seeking revenge against him. The revenge theory formed the basis of Estes‘s defense at trial. He argued that Mother had concocted the abuse story and coached Jane to make the
{¶ 29} During closing arguments, defense counsel pointed out to the jury all the inconsistencies and problems with the testimony. Yet the jury still found that Estes engaged in and attempted to engage in acts of sexual conduct. That the jury chose to believe Jane‘s testimony over Estes‘s testimony does not show that the convictions were against the manifest weight of the evidence. ” ’ [T]he jury was free to believe, or disbelieve, any part of the witnesses’ testimony, and a conviction is not against the manifest weight of the evidence merely because the jury believed the prosecution‘s testimony.’ ” (Citation omitted.) State v. Pheanis, 2d Dist. Montgomery No. 26560, 2015-Ohio-5015, ¶ 36, quoting State v. Arega, 2012-Ohio-5774, 983 N.E.2d 863, ¶ 30 (10th Dist.). The jury could have properly believed Jane‘s testimony, as the jury was “in the best position to determine the credibility of each witness by taking into account inconsistencies, as well as the witnesses’ manner and demeanor.” Id.
{¶ 30} To be found guilty of rape, there must be proof that the defendant engaged in “sexual conduct” with the victim.
{¶ 31} The second assignment of error is overruled.
III. Conclusion
{¶ 32} We have overruled both of the assignments of error presented. The trial court‘s judgment is affirmed.
DONOVAN, J. and TUCKER, J., concur.
Copies sent to:
Nathaniel R. Luken
Michael R. Pentecost
Hon. Michael A. Buckwalter