STATE OF OHIO, Plaintiff-Appellee v. WESLEY T. PAGE, Defendant-Appellant
C.A. CASE NO. 26670
T.C. NO. 13CR2551
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
February 17, 2017
2017-Ohio-568
FROELICH, J.
(Criminal Appeal from Common Pleas Court)
LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 W. Second Street, Suite 400, Dayton, Ohio 45402 Attorney for Defendant-Appellant
O P I N I O N
FROELICH, J.
{¶ 1} Wesley Thomas Page was convicted by a jury in the Montgomery County Court of Common Pleas of two counts of rape (child under the age of 13) and two counts of gross sexual imposition (child under the age of 13). He was sentenced to an
{¶ 2} For the following reasons, the judgment of the trial court will be affirmed.
I. Background
{¶ 3} The victim, A., was eight or nine years old at the time of the alleged offenses, which occurred between May 2011 and May 2013. Page was A.s maternal uncle and occasional babysitter. The specific allegations against Page will be discussed in detail under the first assignment of error.
{¶ 4} On November 7, 2013, Page was indicted on two counts of rape of a child under the age of 13 and two counts of gross sexual imposition of a child under the age of 13. He was tried by a jury and found guilty on all counts. He was sentenced to ten years to life on each count of rape and to 60 months on each count of gross sexual imposition, to be served concurrently. He was also designated to be a Tier III sex offender for the rapes and a Tier II sex offender for the gross sexual impositions.
{¶ 5} Page raises three assignments of error on appeal.
II. Sufficiency and Weight of the Evidence
{¶ 6} In his first assignment of error, Page asserts that the trial court erred in denying his
{¶ 7} “A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to
{¶ 8} In contrast, “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.” Wilson at ¶ 12. When evaluating whether a conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving 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.” Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 9} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinders decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. Singleton, 2d Dist. Montgomery No. 26889, 2016-Ohio-5443, ¶ 21. The fact that the evidence is subject to different interpretations does not render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest weight of the evidence only in exceptional circumstances. Martin at 175.
{¶ 10} As is relevant to this case, rape is defined as follows: “No person shall engage in sexual conduct with another who is not the spouse of the offender * * * when
{¶ 11} The States evidence at trial was as follows:
{¶ 12} A. was age 13 at the time of the trial. She testified that, when she was 8 or 9 years old and her mother would go to work, there were several people who would watch her, including her grandmother and “Uncle Tommy” (Page).
{¶ 13} The victim testified that Uncle Tommy had lived at different houses, and the first time Uncle Tommy touched her was when she was at his house with the swimming pool. She and her younger brother wanted to go swimming in the backyard pool, but Uncle Tommy said they could not swim “until * * * I do something.” He then led her to his bedroom, closed the door, and told her to get undressed.
{¶ 14} A. went into the bathroom off of Uncle Tommys bedroom and took off her
{¶ 15} When Tommy took his “private” out of A.s mouth, he then put his mouth on her “privates,” which she again identified on a doll. She testified that it was not a “quick kiss“; he kept his mouth there, and she did not like it.
{¶ 16} When Uncle Tommy was finished, A. was allowed to put her swimsuit back on and go swimming. Tommy made A. promise not to tell anyone and said she would get in trouble if she told. She “pinky promised” and they interlocked their “pinky” fingers. According to A., her younger brother and possibly one other child were present at the house when these events occurred, but no other adults were present. She testified that she cried while she was swimming, but her brother did not notice because she was wet.
{¶ 17} A. also testified about a second incident of touching by Uncle Tommy, which happened at the same house. On that occasion, Uncle Tommys wife and A.s brother went shopping, leaving A. at home with Uncle Tommy. Uncle Tommy asked, “Do you want to do what we did again?,” and A. answered, “No.” Uncle Tommy said, “Come on. You liked that.” While she was in the living room watching television, Uncle
{¶ 18} A. could not identify specific days when these two events happened, but she estimated that they were about a month apart, and she stated that the weather was warm on both occasions. She believed she was eight or nine years old at the time. Other witnesses testified about the characteristics of various houses in which Page had lived (i.e., a swimming pool and a bedroom with a private bathroom), and approximately when he lived in each.
{¶ 19} A. testified that, on a third occasion, about two years after the first two incidents, much of the family was at her house and she was playing in her room. Uncle Tommy entered her room and touched her “up on [her] thigh really high.” When A.s mother (Mother) walked by the room, Tommy “stopped tickling [her] down by [her] thighs and started going up on [her] stomach.” A. did not see his “private” on this occasion, and he did not touch “inside of [her] private area.” About 10 minutes later, the victim told Mother that she (A.) was upset because Uncle Tommy had touched her. After a short conversation, A. and Mother decided to go ahead with the family hike, but they agreed that A. would stay close to Mother while they were there.
{¶ 21} Mother testified that, on Memorial Day weekend 2013, she was hosting a cook-out for her family, after which they planned to go for a hike. At the house, Mother observed Page in A.s bedroom tickling her, at which time Mother told A. to go outside. A short time later, after A. resisted going on the hike with the extended family, Mother said that A. told her (Mother) that Page had touched her (A.). (A. had directly testified similarly.) Mother testified that A. was “shaky,” “nervous,” and “teary-eyed” when talking about it and stated that she had been afraid to tell Mother sooner. Mother and A. agreed to go on the hike, because the rest of the family had already departed and was wondering where they were, but they did not say anything about the abuse during this outing, and A. stayed close to Mother. Mother, who was unsure how to handle the situation, scheduled an appointment for Tuesday with a psychologist who had previously treated A. for attention deficit hyperactivity disorder (ADHD) and other issues.
{¶ 22} Marisa Borgert, Ph.D., a clinical psychologist who worked with A. before and after the disclosure of sexual abuse, testified that her first discussion with A. about the alleged sexual abuse occurred on May 28, 2013, when Mother brought A. to an appointment made for that purpose. At this appointment, the victim wrote down an account of what had happened, because she was uncomfortable talking about it. Borgert testified that A. had been more quiet than usual, “very serious,” and “reserved” during this
{¶ 23} Dr. Brenda Joyce Miceli, a psychologist at Dayton Childrens Hospitals Care House who does evaluations and therapy with children who have disclosed abuse or trauma, also testified for the State. She had not treated or evaluated the victim in this case, but she testified to the general characteristics and common behaviors of children who have been abused, including reasons for delayed disclosure, fear, secrecy, and the ability to describe physical characteristics or behaviors the child otherwise would not have experienced.
{¶ 24} Pages daughter, age 19, also testified for the State. She testified that she had never lived with her father, but she had visited with him between 2010 and 2013, including the summers of 2011 and 2012, and that the victim and her brother were “constantly over” at Pages house.
{¶ 25} Finally, investigating Detective Mike Rotterman testified about receiving a report regarding A. from Children Services. Rotterman primarily handled child abuse and sex abuse cases. During the course of his investigation, Rotterman was informed by Mother that Page had moved to Florida, where Mothers and Pages mother (the victims grandmother) lived. Rotterman talked with Pages mother and his wife, after which he received a call from Page in July 2013. Page asserted that he was travelling and then in Detroit with his job as a “storm chaser” (assisting power companies with repairs in an area with significant storm damage). According to Page, his wife had gone to Florida and was staying with Pages mother, but their plans for a move to Florida were
{¶ 26} With respect to the police investigation, Rotterman testified that Page denied ever being alone with the victim and claimed he did not like the victim or her brother, to whom he referred as “brats.” Page offered to come back to Ohio to assist with the investigation, but he did not do so until police “had him brought back.” Rotterman stated that no DNA or other scientific evidence was collected in the case because of the significant time that elapsed between the alleged incidents and the victims disclosure of the abuse.
{¶ 27} Rotterman was questioned about what he had learned about the reasons for Pages move to Florida, which generally coincided with the beginning of the police investigation in this case. Rotterman stated that it was possible that Page had moved to Florida for work; his work as a storm chaser had been “sporadic.” However, Pages work at a motorcycle shop owned by his grandfather in Florida after the move had not been full-time, his coming and asking for a job at the motorcycle shop was a “surprise” to the manager, and he was paid “under the table.”
{¶ 28} Pages wife and a long-time friend testified for the defense. His wife testified that Page had not enjoyed babysitting his sisters children, had not been paid for doing so, and had never been alone with the children because the wifes daughter or someone else had always been present. Pages wife testified that when she had socialized with Mother, Mothers husband had watched the children. She testified that Page had “steady work” at the motorcycle shop in Florida and that she also helped out at the shop but did not get paid. According to Pages wife, he got paid every week, but not by check; “if there was money, they gave it to him.”
{¶ 30} Although Page argues in his brief that the jury should not have credited the victims testimony, the believability of the evidence was for the jury to determine. A.s testimony, if believed, was sufficient to support Pages conviction of both rape and gross sexual imposition. Thus, the trial court did not err in denying his
{¶ 31} The victim recounted two distinct instances of sexual abuse, at distinct locations within Pages house, which, if believed, constituted rape and gross sexual imposition. She also described details of a sexual encounter that a child would be unlikely to know but for having experienced such abuse. This testimony was not inherently lacking in credibility or fraught with inconsistencies, as Page suggests. Moreover, under the circumstances presented, the jury could have reasonably rejected any suggestion that the absence of testing for DNA evidence cast reasonable doubt on the victims testimony or the police investigation.1 The jury did not clearly lose its way or create a manifest miscarriage of justice in finding Page guilty of the offenses, and his convictions were not against the manifest weight of the evidence.
{¶ 32} The first assignment of error is overruled.
{¶ 33} In his second assignment of error, Page argues that the trial court erred in allowing hearsay evidence about a conversation between A. and her mother, because there was no evidence that the excited utterance exception or any other exception to the hearsay rule applied. Page asserts that the State attempted “to corroborate the only evidence it had” (the victims testimony) with the testimony of her mother and “to play to the compassion of the jury.”
{¶ 34} Page cites two portions of testimony in support of this argument. First, he cites a portion of the victims testimony about disclosing the abuse to her mother.
Q. [Prosecutor]: *** Okay. And you just talked about Uncle Tommy touching your thigh. How long after Uncle Tommy touched your thigh do you think you told your mom?
A. [A.] Maybe like 10 minutes after.
Q. Okay. So it was pretty soon?
A. Yeah.
Q. Okay. And why did you tell your mom?
A. Because like she said, we were going to go on a, like, wicked hill, grand hill or something. They were going to, like, go on a trip and I didnt want to go and she kept asking why. And so, like, she got mad at me and went in the room and then I told her why and she didnt -- like, she was shocked at first and I told her I didnt want to go --
[Defense Counsel]: Objection.
A. -- because I didnt want that to happen.
{¶ 35} In a discussion at sidebar, defense counsel stated that his objection was based on “relaying to the jury [an] out-of-court statement by her mother.” The State objected to this characterization of the testimony, stating that the witness was relaying the nature of her mothers reaction as she observed it, not any statement made by her mother. The State also assured the court that it did not intend to inquire into any statements Mother had made. The court agreed with the State that the victims testimony in this instance was not hearsay, because it did not recount anything Mother had said.
{¶ 36} Second, Page argues that the trial court erred in admitting a portion of Mothers testimony which also related to the victims disclosure of abuse. Mother recounted how the family was planning to go together to Charleston Falls for hiking, picnicking, and picture-taking. As she was getting her kids ready, and after others had already left for the hike, A. kept saying that she did not want to go, which was out of character for her. Defense counsel objected, arguing that the State was “trying to get it to the jury as a second way * * * for them to hear it [about the disclosure] a second time.” However, the trial court found that the statements were offered for a non-hearsay purpose, and not for the truth of the matter asserted, i.e., to explain Mothers subsequent actions in encouraging A. to stay by her at the hike and in scheduling an appointment the next business day with A.s doctor. Pages objection was overruled. Mother was then allowed to testify that, when she (Mother) asked why A. did not want to go, A. stated she did not want to go because “Tommy” would be there and he had touched her “down there,” indicating her “privates.”
{¶ 38}
{¶ 39} The second assignment of error is overruled
IV. Evidence of Flight
{¶ 40} In his third assignment of error, Page argues that he was prejudiced by evidence that he moved to Florida around the time the victim disclosed the abuse, that the jury was allowed to infer that he knew of the allegations when he left Ohio, that the probative value of this evidence was outweighed by its unfair prejudice to him, and that no evidence was presented that he knew of the victims allegations when he left for
{¶ 41} At trial, Page objected on hearsay grounds to the testimony about his knowledge of A.s allegations prior to his move to Florida, i.e., that his mothers (A.s grandmothers) statements about the allegations, testified to by Pages wife, were hearsay. The trial court rejected this assertion, finding that the statements were not offered for the truth of the matter asserted. Page also raised the issue of spousal privilege, to preclude any testimony about conversations he and his wife may have had about the disclosures, and the trial court heard testimony, in camera, about whether any third party had been present during such conversations. The court concluded that spousal privilege applied.
{¶ 42} Page did not object at trial on the basis that testimony about his move to Florida was irrelevant or unduly prejudicial to him, as he does on appeal. Accordingly, we review for plain error. In order to constitute plain error, the error must be an obvious defect in the trial proceedings, and the error must have affected substantial rights. State v. Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 22;
{¶ 43} Pages wife testified that she learned of A.s allegations against her husband from her mother-in-law (A.s grandmother) before she and Page moved to Florida in June 2013. Pages wife also testified that Page did not have a job in Florida when they moved there. Mother testified that she had told her mother (who was also
{¶ 44} The trial court did not abuse its discretion, much less commit plain error, in concluding that Pages decision to move to Florida around the time of A.s disclosure and his motive(s) for doing so were relevant to this case. As such, it was not an “obvious defect” in the proceedings for the trial court to permit this testimony, and there is no basis to conclude that this evidence created a “manifest miscarriage of justice.” Moreover, notwithstanding the representations of both parties that no cautionary instruction was requested or given to the jury on drawing inferences from Pages alleged “flight” from Ohio, the record establishes that the trial court did instruct the jury, without objection, on consciousness of guilt, in accordance with 2 Ohio Jury Instructions 409.13.2
{¶ 45} We find no basis to conclude that the trial court erred in admitting testimony about Pages move to Florida or that Page was unduly prejudiced by it.
{¶ 46} The third assignment of error is overruled.
V. Conclusion
{¶ 47} The judgment of the trial court will be affirmed.
HALL, P.J., and WELBAUM, J., concur.
Copies mailed to:
Lynne R. Nothstine
Lucas W. Wilder
Hon. Dennis J. Langer