State v. NolesState v. Noles
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Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Nicole I. Khoury, for appellant.
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JENSEN, J.
{¶1} Billie Noles appeals from a judgment of conviction and sentence following a jury verdict finding him guilty on four counts of rape in violation of
{¶3} In September 2011, the Lucas County Grand Jury indicted appellant on four counts of rape in violation of
{¶4} On November 8, 2011, appellant filed a written plea of not guilty by reason of insanity to each count of the indictment.
{¶5} On November 22, 2011, a clinical psychologist from Court Diagnostic & Treatment Center, Charlene A. Cassel, Ph.D., authored a report setting forth the results of appellant‘s Kaufman Brief Intelligence Test-Second Edition. According to the doctor, appellant “obtained a Full Scale IQ composite of 50. His verbal knowledge was 60 and his nonverbal was 54.” The doctor indicated that appellant‘s scores would “classify him in the Moderate Mental Retardation range.” Dr. Cassel opined, to a reasonable degree of
{¶6} The matter was recalled for arraignment on November 30, 2011. Appellant moved and was granted a second opinion relating to competency and criminal responsibility. Again, appellant was referred to Court Diagnostic & Treatment Center for evaluation.
{¶7} On February 1, 2012, the trial court received and admitted into evidence a report authored by Thomas G. Sherman, M.D. The trial court found appellant competent to stand trial.
{¶8} Appellant‘s trial counsel filed a motion to suppress arguing that the statements made by appellant to Detective Kilburn were obtained in violation of the rights guaranteed by the Fourth, Fifth, and Fourteenth Amendments to United States Constitution, and Article I, Sections 10 and 16 of the Ohio Constitution. Trial counsel argued that the statements were made while appellant was in custody of the Toledo Police Department without having been advised of his Miranda rights.
{¶9} A hearing was held on the motion to suppress. Detective Kilburn testified on behalf of the state. According to Kilburn, at the time appellant was identified as a suspect, he was staying at the Knights Inn in Rossford, Ohio. Detective Kilburn called appellant and invited him to the station for an interview. Noles informed the detective he had no means of transportation. Detective Kilburne offered to have a patrol car and its
{¶10} A video recording of the 48 minute interview was admitted into evidence. The video indicates that upon arrival in the interview room, Detective Kilburne informed appellant he was there on his “own free will.” She further stated, “[i]f you don‘t want to talk to me, you don‘t have to. It‘s in your best interest for you to talk to me here today, but at any time that if you want to get up and leave you have that right to do so. * * * If you don‘t want to be here you don‘t have to be here.” Appellant indicated he understood and that he had nothing to hide.
{¶11} The detective informed appellant that he was a suspect in an investigation because the then nine-year-old victim had accused appellant of having sexual contact with her when she was four or five years old. Initially, appellant denied any sexual contact with the girl. Nineteen minutes into the interview, Detective Kilburn suggested that G.B. might have “come on” to appellant; that G.B. might have initiated the sexual contact. The detective indicated that she was not suggesting that appellant forced G.B. to do anything. Rather, Detective Kilburn reminded appellant that G.B. claimed it happened and that he needed to “think about how this happened, because we know it wasn‘t forced.” Twenty-three minutes into the interview, appellant admitted being alone in the bathroom with G.B. He also admitted that he remembered his pants being down. The detective again suggested G.B. initiated the contact. Twenty-four minutes into the
{¶12} Twenty-six minutes into the interview, appellant asked if he needed to get a lawyer. He indicated that he dropped out of school in the eleventh grade and that his reading level was at the third or fourth grade level. Without answering appellant‘s question, Detective Kilburn noted there is a difference between a forced sexual act and a sexual act that is not forced.
{¶13} Twenty-nine minutes into the interview appellant claimed that G.B. approached him and put her mouth on his penis “maybe once.” He denied the allegation that it happened every time she was at his house. Appellant also denied the allegation that he gave G.B. ice cream after the alleged sexual acts occurred. Appellant insisted he would not give a child ice cream as a “reward for something like that.”
{¶14} Thirty-five minutes into the interview appellant was asked if there was anything else about that day that would help the detective with her investigation, appellant replied “I noticed that she would hump her baby dolls a lot.” Near the end of the interview, Detective Kilburn allowed appellant to ask her questions. Appellant asked
{¶15} After the interview, appellant was driven back to the Knights Inn in the patrol car by the uniformed officers.
{¶16} At the conclusion of the hearing on the motion to suppress, trial counsel referred to a report authored by Dr. Cassel. He argued that a suspect with an IQ of 50 would not have known that he was not in custody at the time he made his statements to the detective and asked that the Court Diagnostic & Treatment Center‘s report be used as evidence to support his argument. Trial counsel argued:
Your Honor, the report is part of the record, and I think the Court can take judicial notice of a person – placing a person in Mr. Nole‘s [sic] place with an IQ of 50 whether they – how they would perceive the situation. If not I would ask to continue the hearing where I could bring Dr. Cassel in.
The state objected both to trial counsel‘s request to take judicial notice and to the proposition that Dr. Cassel could testify to Noles’ perception at the time of the interview. The trial court denied the request to take judicial notice, but allowed appellant a continuance so that trial counsel could research whether Dr. Cassel could render an
{¶17} On September 24, 2012, the trial court orally denied appellant‘s motion to suppress and a jury trial commenced. At trial, G.B. testified that when she was four years old and still living with her mother, she and her brothers would be dropped off at Billy and Sue‘s house almost every week. At first, she and her brothers would play games and watch movies. At some point, however, Billy began taking her into the bathroom while her brothers played in the front room. Once in the bathroom, Billy would pull his pants to his knees and put her mouth on his penis. Afterward, Billy would “pull his pants back on and give [her] some ice cream.” Billy instructed G.B. not to tell anyone.
{¶18} G.B. testified the sexual contact occurred “more than ten times” and that it happened “almost every time” she went to Billy‘s house. She never told anyone about the touching until she was in third grade. When asked why she finally told the counselor at her school, G.B. explained, “because we were talking about people touching other people and stuff like that.”
{¶19} G.B.‘s mother testified that she lost custody of her children in August 2006, because she was in an abusive relationship. The two oldest boys live with their father. The five youngest children now live with G.B‘s grandmother. In February and March of 2006, the mother would take all or some of the kids to Billie and Sue‘s house so that Sue could “babysit” the children. When asked how often this babysitting occurred, the
{¶20} When asked why she stopped taking her children to Billie and Sue‘s house, the mother explained,
I stopped taking my daughter over there because when I would go to drop the kids off she would cry. The other kids were fine because they played video games and things like that, but she would just cry. And I didn‘t understand why. I asked her if something was wrong, and I just didn‘t – that‘s my baby girl. I didn‘t like to see her cry, so I quit taking her, and she would go with me.
{¶21} G.B.‘s grandmother testified that she obtained legal custody of the younger children in 2007. In 2011, the grandmother received a telephone call from Lucas County Children Services (“CSB“). The caseworker wanted to speak with her about G.B. The grandmother explained:
A. [G.B.] told the counselor about an episode that she had. So [CSB] wanted to talk to us about it and see if we knew.
Q. Were you familiar with whom this episode involved?
A. No, this was the first – brought to our attention. We were shocked.
Q. What did [G.B] tell you happened?
A. She said that every time she would go over to Billie and Sue‘s house that Billie would take her into the bathroom, and he would make her put his penis in her mouth.
Q. And did she tell you that this happened more than one time?
A. She said about every time she went over there.
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Q. And you mentioned that [G.B.] was crying that she thought this was her fault. What did she say to you?
A. She was afraid to tell us because she thought we were going to be mad and angry with her and not love her.
{¶23} Dr. Cassel testified that upon her examination of appellant she found him competent to stand trial. She also found that he suffered from periodic anxiety attacks and mild to moderate mental retardation. Dr. Cassel testified that when she interviewed appellant he admitted the kind of behavior he was accused of committing was wrong, but that he denied committing the offenses.
{¶25} A timely appeal was filed. Appellant raises four assignments of error for our consideration:
- The Trial Court erred by denying the Defendant‘s Motion to Suppress Statements of the Defendant as they were not knowingly, intelligently, and voluntarily made.
- Trial counsel was ineffective and prejudiced Defendant/Appellant‘s right to a fair trial as guaranteed by the U.S. and Ohio Constitutions.
- The Trial court erred by allowing the alleged victim‘s mother to testify as to hearsay that is not covered under the Excited Utterance exception to hearsay.
- The conviction was not sufficiently supported by credible evidence and was against the Manifest Weight of the Evidence.
{¶26} In his first assignment of error, appellant argues that due to his developmental disabilities he did not knowingly, intelligently, and voluntarily waive his right to remain silent when questioned by Detective Kilburn. To that end, appellant contends that the trial court erred when it denied the motion to suppress.
In deciding whether a defendant‘s confession is involuntarily induced, the court should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement. Edwards at paragraph two of the syllabus.
{¶28} In this case, the trial court did not articulate a particular reason for denying the motion to suppress, but instead indicated “[t]he court reviewed the submitted DVD of the statements and finds that there is no reason to suppress the statements and is going to overrule the motion and deny the same and allow the statement to be used.”
{¶29} At the suppression hearing Detective Kilburn testified that the police department had determined that the then suspect was residing at the Knights Inn in
{¶30} Upon his arrival at the station, appellant was placed in a small, closed-door room with Detective Kilburn. Appellant was reminded that he was there voluntarily and that if he wanted to get up and leave he could do so at any time. Appellant indicated that he understood; that he had nothing to hide. The interview lasted 48 minutes. At the time of the motion hearing, the trial court would have been aware of appellant‘s mild mental retardation as the court had already reviewed the reports from Court Diagnostic & Treatment Center and made the determination appellant was competent to stand trial. Our review of the videotaped interview indicates that appellant appeared coherent. There is no evidence of physical deprivation, mistreatment or coercion. Appellant appeared to understand the questions asked of him by Detective Kilburn and responded accordingly. Near the end of the interview, appellant asked numerous well-reasoned questions about the legal process and the possible consequences of his actions. There is nothing in the “totality of the circumstances” involved here, which made appellant‘s confession anything but voluntary.
{¶32} In his second assignment of error, appellant argues that trial counsel was ineffective and prejudiced his right to a fair trial.
{¶33} In order to prevail on a claim for ineffective assistance of counsel, appellant must show that trial counsel‘s performance fell below an objective standard of reasonable representation and that prejudice resulted from counsel‘s deficient performance. State v. Bradley, 42 Ohio St.3d 136, 137, 538 N.E.2d 373 (1989), paragraph two of the syllabus, following Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶34} It has long been held that decisions regarding the calling of a witness are within the purview of defense counsel strategy and trial tactics. State v. Hunt, 20 Ohio App.3d 310, 312, 486 N.E.2d 108 (9th Dist.1984), citing O‘Malley v. United States, 285 F.2d 733 (6th Cir.1961). Thus, defense counsel‘s failure to call a witness “will not automatically result in a finding of ineffective assistance of counsel.” State v. Owens, 8th Dist. Cuyahoga No. 56577, 1990 WL 19318, *2 (Mar. 1, 1990).
{¶36} There is no evidence before the court that appellant was prejudiced by trial counsel‘s decision not to call Dr. Cassel to the stand. Further, there is no evidence that there is a reasonable probability that but for trial counsel‘s decision a different result would have occurred. To that end, appellant‘s second assignment of error is found not well-taken.
{¶37} In his third assignment of error, appellant argues that the trial court erred when it allowed into evidence, over objection from trial counsel, hearsay testimony of the grandmother. The grandmother testified, in relevant part, as follows:
Q. You spoke with [G.B.] directly.
A. Yes, me and my husband did.
Q. What did [G.B] tell you happened?
A. She said that every time she would go over to Billie and Sue‘s house that Billie would take her into the bathroom, and he would make her put his penis in her mouth.
Q. And did she tell you that this happened more than one time?
A. She said about every time she went over there.
{¶38} “‘Hearsay’ is 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.”
{¶39} In order for testimony to be allowed into evidence under the excited utterance exception, the following elements must be met “(1) there was an event startling enough to produce a nervous excitement in the declarant, (2) the statement must have been made while under the stress of excitement caused by the event, (3) the statement must relate to the startling event, and (4) the declarant must have had an opportunity to personally observe the startling event.” State v. Boles, 190 Ohio App.3d 431, 2010-Ohio-
{¶40} Here, the state suggests that the “startling event” was not the sexual conduct but G.B‘s realization that what had happened between her and the appellant was wrong. While any statement made to the school counselor immediately upon the realization would likely fit into the excited utterance exception to the hearsay rule, we do not know how much time had passed between the “realization” and G.B‘s statement to her grandmother.
{¶41} Irrespective as to whether G.B.‘s statements to her grandmother constituted excited utterances, we find that the admission of the grandmother‘s testimony was harmless error. The purpose of the grandmother‘s testimony was to explain how she obtained knowledge of the abuse and to provide chronological context into what occurred before and after the disclosure. It was not at all necessary for the grandmother to have stated the words that G.B. related to her.
{¶42} “[W]here a declarant is examined on the same matters as contained in impermissible hearsay statements and where admission is essentially cumulative, such admission is harmless.” State v. Tomlinson, 33 Ohio App.3d 278, 281, 515 N.E.2d 963 (12th Dist.1986). In this case, G.B. testified at trial and was available for cross examination. She testified as to the same acts that she had told her grandmother. Even if the grandmother‘s testimony concerning G.B‘s statements were hearsay, they were
{¶43} In his fourth assignment of error, appellant argues the conviction was not sufficiently supported by credible evidence and was against the manifest weight of the evidence.
{¶44} “Sufficiency and manifest-weight challenges are separate and legally distinct determinations.” State v. Hatten, 186 Ohio App.3d 286, 2010-Ohio-499, 927 N.E.2d 632, ¶ 17 (2d Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “A sufficiency of the evidence argument challenges whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law.” State v. Shaw, 2d Dist. Montgomery No. 21880, 2008-Ohio-1317, ¶ 28, citing Thompkins at 387. When reviewing for the sufficiency of the evidence, an appellate court‘s function 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, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the
{¶45} Appellant was charged with having violated
{¶46} “A manifest weight of the evidence challenge contests the believability of the evidence presented.” State v. Wynder, 11th Dist. Ashtabula No. 2001-A-0063, 2003-Ohio-5978, ¶ 23. When determining whether a conviction is against the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences drawn from it, consider the witnesses’ credibility, and decide whether in resolving any conflicts in the evidence, the trier of fact “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. Prescott, 190 Ohio App.3d 702, 943 N.E.2d 1092, ¶ 48 (6th Dist.), citing Thompkins at 387.
{¶47} It has long been held that the weight to be given to the evidence and the credibility of the witnesses is primarily for the trier of fact to determine. State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356 (1982). When reviewing a manifest weight of the evidence challenge, an appellate court sits as the “thirteenth juror.” State v. Prescott, 190 Ohio App.3d 702, 943 N.E.2d 1092 (6th Dist.), ¶ 48, citing Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.
{¶48} After review of the entire record, we find that the evidence presented by the state coupled with appellant‘s own admissions outweigh appellant‘s position that the jury lost its way when it returned a verdict of guilty on all four counts contained within the indictment. Our review of the evidence and all reasonable inferences drawn from it lead to our conclusion that appellant‘s convictions were supported by the weight of the evidence. For the reasons stated above, the fourth assignment of error is found not well taken.
{¶49} The judgment of conviction of the Lucas County Court of Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Stephen A. Yarbrough, J.
JUDGE
James D. Jensen, J. CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.