STATE OF OHIO, Plaintiff-Appellee v. BRIAN HARTINGS, Defendant-Appellant
C.A. CASE NO. 27471
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
May 25, 2018
[Cite as State v. Hartings, 2018-Ohio-2035.]
T.C. NO. 2016-CR-2701 (Criminal Appeal from Common Pleas Court)
Attorney for Plaintiff-Appellee
BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449
Attorney for Defendant-Appellant
{¶ 1} Defendant-appellant Brian Hartings appeals his conviction and sentence for one count of rape (by force or threat of force), in violation of
{¶ 2} The incident which forms the basis for the instant appeal occurred late in the morning on August 28, 2016, when the victim, seventeen year old A.B., and her then-boyfriend, D.B., walked over to a residence located on a street in Dayton, Ohio. The residence in question belonged to D.B.s aunt, J.B. J.B. lived in the house with the defendant, Hartings, who was her boyfriend. Hartings was forty-two years old at the time the offense occurred. J.B. and Hartings had been in a relationship for approximately twenty years and had five children together. A.B. was friends with the three youngest children of J.B. and Hartings.
{¶ 3} On the day in question, A.B. and D.B. had an argument while walking over to J.B.s residence. A.B. testified that upon reaching the house, they encountered Hartings sitting on the front porch smoking a cigarette. At this point, D.B. left to go and meet some friends. After D.B. left, A.B. and Hartings walked to the back porch and smoked cigarettes together. Although A.B. went to the house to visit Hartings daughters, he told her that they were still asleep and not to wake them. A.B. testified that she did not leave at this point because D.B. would get angry with her because he did not have a cellphone with him allowing her to contact him if she were to leave.
{¶ 4} A.B. testified that while they were sitting on the back porch, Hartings began rubbing her thighs and telling her that she was sexy. A.B. informed Hartings that he was
{¶ 5} While she was sitting in the living room, A.B. testified that she placed her cellphone on a coffee table near the sofa. Without her permission, Hartings picked up A.B.s cellphone and went downstairs to the basement of the house. When A.B. went downstairs to retrieve her cellphone, Hartings grabbed her arm and attempted to kiss her. A.B. testified that she backed away from Hartings and told him that she felt uncomfortable. Hartings responded by “shushing her” and telling her to be quiet. Hartings then tried to kiss A.B. again and pulled her over to a pool table that was located in the basement. Once there, Hartings pushed A.B. down onto the pool table and started taking off her pants. Again, A.B. told Hartings that she was uncomfortable, and she attempted to push him off of her.
{¶ 6} Undeterred, Hartings pulled off A.B.s underwear and placed his penis inside her vagina. When the assault first began, A.B. was laying on her back on the pool table. At some point, Hartings turned A.B. over on her stomach and continued the sexual assault. Hartings then turned A.B. onto her back again and ejaculated on her chest. A.B. testified that Hartings did not wear a condom during the assault. When the assault was over, Hartings told A.B. “to be quiet or else she might get some more.” A.B. put her
{¶ 7} After approximately five minutes, D.B. returned, and he and A.B. left Hartings residence on foot. A.B. and D.B. walked behind a nearby library where she told him what had occurred. D.B. immediately suggested that they walk to a nearby restaurant where his aunt, J.B., worked and tell her what happened. As the two walked to the restaurant, A.B. became aware that she had recorded a portion of the sexual assault on her cellphone. The recording contains only sound and no images of the assault. A.B. testified that she and D.B. listened to the recording before meeting J.B. At trial, the jury heard the audio portion of the phone recording which had been transferred to compact disc. States Ex. 15-A.
{¶ 8} A.B. testified that the recording, which lasts approximately three minutes, was made while A.B. and Hartings were in the basement on August 28, 2016. In the recording, A.B. tells Hartings several times that she “cant do this.” A.B. can also be heard telling Hartings that she is very uncomfortable and that she “cant do anything” with him. A.B. also tells Hartings “no” several times, and she also asks him to “get off” of her. A.B. testified that she was unaware how the phone started recording because the screen appeared to be blank when she retrieved her phone from the basement.
{¶ 9} A.B. and D.B. reached the restaurant at approximately 1:00 p.m. and told J.B. what had occurred. J.B. also listened to the recording on A.B.s cellphone. At approximately 2:00 p.m., J.B. called Hartings and questioned him about the assault. J.B.
{¶ 10} After speaking with J.B. at the restaurant, A.B. went home and told her mother that she had been sexually assaulted by Hartings. A.B.s mother called the police and took A.B. to Dayton Childrens Hospital. A.B. spoke to the police at the hospital and provided them with a written statement.
{¶ 11} After being arrested, Hartings was transferred to the Safety Building where he was interviewed by Dayton Police Detective Joshua Spears from the Special Victims Unit. Prior to answering any questions, Hartings was informed of his Miranda rights by Detective Spears, after which Hartings read and signed a pre-interview waiver form. Upon being questioned as to why he had been arrested, Hartings stated that someone accused him of rape, but he did not know who the accuser was. Eventually, Hartings informed Det. Spears that A.B. had accused him of raping her. Initially, Hartings denied that any contact, sexual or otherwise, took place between A.B. and himself. After Det. Spears informed him that there was a video recording of the assault, Hartings admitted that he engaged in sexual conduct with A.B., but stated that it was consensual in nature. Hartings also initially stated that A.B. took off her own pants and underwear, but he later changed his story and stated that he had removed A.B.s pants and underwear at the same time before having sex with her. Hartings also stated that at no point did A.B. say
{¶ 12} Thereafter, on September 7, 2016, Hartings was indicted for one count of rape (by force or threat of force). At his arraignment on September 13, 2016, Hartings stood mute, and the trial court entered a plea of not guilty on his behalf.
{¶ 13} On September 28, 2016, Hartings filed a motion to suppress any statements he made to law enforcement officials after being arrested on August 28, 2016. A hearing was held on said motion on November 10, 2016. On November 22, 2016, the trial court issued a decision overruling Hartings motion to suppress. On January 3 and 6, 2017, the State filed a motion in limine in which it sought application of the Rape Shield Law. On January 6, 2017, the trial court granted the States motion in limine.
{¶ 14} The case proceeded to a jury trial beginning on January 17, 2017, and lasting until January 20, 2017, whereupon Hartings was found guilty of rape. The trial court ordered the adult probation department to prepare a pre-sentence investigation report (PSI). On February 2, 2017, Hartings was designated as a Tier III sexual offender. On February 6, 2017, the trial court sentenced Hartings to a mandatory ten years in prison.
{¶ 15} It is from this judgment that Hartings now appeals.
{¶ 16} Hartings first assignment of error is as follows:
{¶ 17} “THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN HARTINGS CONVICTION FOR RAPE.”
{¶ 18} In his first assignment, Hartings contends that the State failed to adduce sufficient evidence to support his conviction for rape, in violation of
{¶ 19} Although the State does not raise the issue, we note that the record fails to establish that Hartings renewed his
{¶ 20} A challenge to the sufficiency of the evidence presents a question of law as to whether the State has presented adequate evidence on all elements of the offense to sustain the verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000). “An appellate courts 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 defendants guilt beyond a reasonable doubt. The 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.” State v. Jackson, 2015-Ohio-5490, 63 N.E.3d 410, ¶ 41 (2d Dist.), quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 21} Pursuant to
{¶ 22} Ohios rape statute does not require proof of the victims lack of consent. Ohio law does recognize certain victims incapable of giving consent, based on mental or physical incapacity. Those exceptions do not apply in the case before us. See, e.g.,
The determination of a defendants mental state, absent some comment on his or her part, must of necessity be determined by the nature of the act when viewed in conjunction with the surrounding facts and circumstances. State v. Lott (1990), 51 Ohio St.3d 160, 168, 555 N.E.2d 293, 302. This is, in fact, the well-recognized process of inferential reasoning. This process by necessity incorporates an objective mechanism or standard in determining the defendants state of mind by the use of circumstantial evidence. The trier of fact reviews the defendants conduct in light of the surrounding facts and circumstances and infers a purpose or motive.
{¶ 23}
{¶ 24} In State v. Hartman, 2016-Ohio-2883, 64 N.E.3d 519 (2d Dist.), we found the force element of the rape offense to be satisfied because the defendant was significantly larger than the victim. Id. at ¶ 30. Additionally, the victim testified that she was scared because she was not as strong as the defendant, and she believed that he would use his superior strength to hurt her if she did not submit to his sexual advances. Id. Moreover, the victim testified that she repeatedly said “No” to the defendant during the sexual assault. Id. The physical force described by the victim included her testimony that the defendant “pushed” her onto the bed, removed her clothing, laid on top of her, and “pulled” her into the shower. Id.
{¶ 25} Initially, we note that at the time of the sexual assault, A.B. was seventeen years old; Hartings was forty-two years old. A.B. knew Hartings because he is the father of three children who were her friends. A.B. testified that she viewed Hartings “more as [her] uncle.”
{¶ 26} A.B. testified that her sole reason for going to Hartings house on August 28, 2016, was to visit his three daughters. While on the back porch smoking, Hartings began rubbing A.B.s thighs and telling her how sexy she was. A.B. testified that she told Hartings that she felt uncomfortable. Hartings stopped rubbing her thighs, but only a moment later, he began rubbing her breasts. A.B. again told Hartings that she felt uncomfortable. At this point, A.B. got up, went inside the house, and sat in the living room where she testified that she was waiting for her friends to wake up. Hartings followed A.B. inside the house and began rubbing her thighs again. Once more, A.B. told Hartings that she was uncomfortable, but he did not respond. A.B. testified that she did not leave at this point because she was worried that D.B. would get angry with her because he did not have a cellphone with which to contact her.
{¶ 27} As previously stated, A.B. testified that she placed her cellphone on a coffee table near the sofa. Hartings picked up A.B.s cellphone and went downstairs to the basement of the house. When A.B. went downstairs to retrieve her cellphone, Hartings grabbed her arm and attempted to kiss her. A.B. testified that she backed away from Hartings and told him that she felt uncomfortable. Hartings responded by “shushing her” and telling her to be quiet. Hartings then tried to kiss A.B. again and pulled her over to a pool table that was located in the basement. Once there, Hartings pushed A.B. down onto the pool table and started taking off her pants. Again, A.B. told Hartings that she was uncomfortable, and she attempted to push him off of her.
{¶ 28} At this point, Hartings pulled off A.B.s underwear and placed his penis inside her vagina. When the assault first began, A.B. was laying on her back on the pool table. At some point, Hartings turned A.B. over on her stomach and continued the sexual
{¶ 29} The recording of the sexual assault from A.B.s cellphone supports her testimony regarding Hartings conduct. In the recording, A.B. tells Hartings several times that she “cant do this.” A.B. can also be heard telling Hartings that she is very uncomfortable and that she “cant do anything” with him. A.B. also tells Hartings “no” several times, and she also asks him to “get off” of her. A.B. testified that she was scared throughout the entire ordeal and did not know how to respond to Hartings.
{¶ 30} Construing the evidence presented in a light most favorable to the State, as we must, we conclude that a rational trier of fact could find all of the essential elements of the crime of rape to have been proven beyond a reasonable doubt, including that Hartings compelled A.B. to submit by force or threat of force. Hartings rape conviction is therefore supported by legally sufficient evidence.
{¶ 31} Finally, Hartings conviction is not against the manifest weight of the evidence. The credibility of the witnesses and the weight to be given their testimony were matters for the jury to resolve. The jury did not lose its way simply because it chose to believe the testimony of the victim, A.B., who testified at length regarding Hartings forcing her to submit to penile rape. Given the discrepancy in age between A.B., a minor, and Hartings, their quasi-familial relationship, and A.B.s testimony regarding Hartings refusal to stop after being told “no” and “get off” several times, we cannot clearly find that the evidence weighs heavily against conviction, or that a manifest miscarriage of justice has occurred.
{¶ 32} Hartings first assignment of error is overruled.
{¶ 33} Hartings second assignment of error is as follows:
{¶ 34} “HARTINGS 10-YEAR SENTENCE IS CONTRARY TO LAW BECAUSE THE TRIAL COURT FAILED TO CONSIDER THE SENTENCING GUIDELINES.”
{¶ 35} In his second and final assignment of error, Hartings argues that his ten-year sentence is contrary to law because the trial court failed to properly consider and apply
{¶ 36} As this Court has previously noted:
This court no longer applies an abuse of discretion standard when reviewing felony sentences, as the Supreme Court of Ohio has made clear that felony sentences are to be reviewed in accordance with the standard set forth in
R.C. 2953.08(G)(2) . State v. McCoy, 2d Dist. Clark No. 2016–CA–28, 2016–Ohio–7415, ¶ 6, citing State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 10, 16. Accord State v. Rodeffer, 2013–Ohio–5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.) Under the plain language ofR.C. 2953.08(G)(2) , “an appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial courts findings under relevant statutes or that the sentence is otherwise contrary to law.” Marcum at ¶ 1.
“This is a very deferential standard of review, as the question is not whether the trial court had clear and convincing evidence to support its findings, but rather, whether we clearly and convincingly find that the record fails to support the trial courts findings.” State v. Cochran, 2d Dist. Clark No. 2016–CA–33, 2017–Ohio–217, ¶ 7, citing Rodeffer, supra at ¶ 31.
Even before Marcum, we had indicated “[t]he trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give reasons for imposing maximum or more than minimum sentences.” (Citation omitted.) State v. Nelson, 2d Dist. Montgomery No. 25026, 2012–Ohio–5759. Accord State v. Terrel, 2d Dist. Miami No. 2014–CA–24, 2015–Ohio–4201, ¶ 14. But “in exercising its discretion, a trial court must consider the statutory policies that apply to every felony offense, including those set out in
R.C. 2929.11 andR.C. 2929.12 .” (Citations omitted.) State v. Castle, 2016–Ohio–4974, 67 N.E.3d 1283, ¶ 26 (2d Dist.). * * *
State v. Folk, 2d Dist. Montgomery No. 27375, 2017–Ohio–8105, ¶ 5–6.
{¶ 37} Initially, we note that at Hartings sentencing hearing, the trial court made the following statement:
With that out of the way, and considering, again, the purposes and principles of sentencing and recidivism factors of the revised code, the Court is going to sentence Mr. Hartings to serve a period of ten years in incarceration in the State of Ohio prison system.
{¶ 38}
{¶ 39}
{¶ 40} At Hartings sentencing hearing, the trial court stated that it had received and reviewed the PSI. The trial court also stated that it had considered “the purposes and principles of sentencing and recidivism factors of the revised code,” and it noted that
{¶ 41} As previously stated, the evidence adduced at trial established that Hartings, a forty-two year old man, forcibly raped A.B., a seventeen year old female, in the basement of his residence. A.B. testified that she considered Hartings to be “like an uncle.” Therefore, the offenders relationship facilitated the offense. Additionally, Hartings argument that A.B. never told him to stop is undermined by the recording of the sexual assault wherein A.B. clearly tells Hartings several times that she “cant do this.” A.B. can also be heard telling Hartings that she is very uncomfortable and that she “cant do anything” with him. A.B. also tells Hartings “no” several times, and she also asks him to “get off” of her.
{¶ 42} Furthermore, Hartings PSI discloses that he has a prior adult criminal record for theft, unauthorized use of property, and public intoxication. Hartings was also previously adjudicated delinquent for the commission of a sex offense.
{¶ 43} In the case at bar, the trial court imposed a sentence within the permissible statutory range. The record establishes that the trial court properly reviewed the PSI, Hartings statement, as well as the statements of counsel. The record further establishes that the trial court considered the principles and purposes of sentencing under
{¶ 44} Hartings second assignment of error is overruled.
{¶ 45} Both of Hartings assignments of error having been overruled, the judgment of the trial court is affirmed.
WELBAUM, P.J. and TUCKER, J., concur.
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Ben W. Swift
Heather N. Jans
Hon. Mary L. Wiseman