State v. RaineyState v. Rainey
O P I N I O N
Rendered on the 6th day of November, 2009.
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MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Rеg. #0069829, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
MARCY J. HERMAN, Atty. Reg. #0077390, Post Office Box 293099, Kettering, Ohio 45429 Attorney for Defendant-Appellant
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BROGAN, J.
{¶ 1} William J. Rainey appeals from his conviction and sentence on two counts of rape and two counts of gross sexual imposition involving a child under age thirteen.
{¶ 3} The present appeal stems from an incident that occurred on March 12, 2008. At that time, Rainey shared a home with twelve-year-old D.A. and her mother. D.A. testified that she was home alone with Rainey that day. While she was on her bed drawing, Rainey came into her room and got on the bed with her. According to D.A., Rainey put a hand up her shirt and touched her chest. He then put a hand inside her pants and touched her “on [her] private.” D.A. testified that Rainey proceeded to put a hand inside her “private.” He then put his “private” inside her “front private.” After the incident ended, the child ran outside, barefoot through the snow, to a neighbor’s house.
{¶ 4} The neighbor, C.M., heard D.A. outside, crying hysterically and pounding on her window and door. C.M. opened the door and observed the child “stuttering and shaking.” D.A. reported to C.M. that Rainey had touched her breast and vagina and had put his fingers and penis in her vagina. D.A. then hid in a bathroom while C.M. attempted to contact the child’s mother. C.M. ultimately reached D.A.’s aunt and explained what had happened. After she completed the call, Rainey appeared at her house, acting “like a crazy man,” banging on her door and windows
{¶ 5} D.A.’s mother аppeared at C.M.’s house a short time later and took the child back home. When D.A.’s aunt arrived, she saw the child’s mother and Rainey sitting at a kitchen table. The aunt proceeded to D.A.’s bedroom and spoke with the child, who was crying. D.A. told her aunt that Rainey was touching her and had “tried to put his thing in [her].” Because the child was so upset, her aunt did not inquire any further. The aunt returned to the living area and heard Rainey proclaim that he “didn’t touch her.” She described his demeanor and appearance as “[p]lain out pissy drunk.” According to the aunt, Rainey eventually decided to leave, explaining that he was going to Georgia “to start a new life.”
{¶ 6} Following Rainey’s departure, D.A.’s mother agreed to take the child to the hospital. A pelvic exam revealed pari-vaginal petechial bruising, which a hospital pediatrician testified is consistent with sexual contact. A forensic scientist from the Miami Valley Regional Crime Laboratory also examined the shorts D.A. had been wearing and found a substantial amount of semen inside them. DNA testing established, to a reasonable degree of scientific certainty, that the semen was Rainey’s. A swab of D.A.’s rectum also revealed the presence of semen, but the sample was inadequate to obtain a DNA profile.
{¶ 7} Rainey testified in his own defense and denied D.A.’s allegations. He stated that he entered her room on March 12, 2008 and found her on her bed
{¶ 8} A jury ultimately found Rainey guilty on the four charges set forth above. The trial court merged one of the gross sexual imposition charges into one оf the rape charges. It then imposed an aggregate sentence of fifteen years to life in prison. This timely appeal followed.
{¶ 9} In his first assignment of error, Rainey contends his convictions are against the manifest weight of the evidence. In support, he claims inconsistencies in D.A.’s testimony undermined her credibility. He also asserts that the physical evidence contradicted her allegations and that she had a motive to lie.
{¶ 10} With regard to inconsistencies in D.A.’s testimony, Rаiney stresses that a hospital form listed her complaint as “having been groped by mom’s boyfriend, touched over clothing, waved his wiener at her.” Rainey points out that the form does not mention rape or digital penetration, which D.A. alleged at trial. Rainey also notes
{¶ 11} As for the physical evidence, Rainey stresses that no semen was found on the outside of D.A.’s body, that shе had no supra-pubic tenderness, and that there were no lacerations or tears of the vaginal vault. Rainey also notes that the only swab revealing the presence of semen inside D.A.’s body was an anal swab. He alleges that this is inconsistent with D.A.’s allegation of vaginal rape. Moreover, Rainey points out that there was not enough DNA on the anal swab to link it to him. He additionally argues that D.A. had a motive to lie because she admitted thinking he was bossy and disliking him making her do chоres. Rainey stresses D.A.’s testimony about being happy he no longer is around.
{¶ 12} Finally, Rainey contends his gross sexual imposition convictions are against the manifest weight of the evidence because D.A. only testified about being “touched” on her chest under her shirt and on her “private” under her shorts. Rainey claims testimony about “touching” alone is not indicative of a purpose to arouse or gratify sexually, which is an element of gross sexual imposition.
{¶ 13} Upon review, we find Rainey’s first assignment of error to be
{¶ 14} The evidence before us does not weigh heavily against Rainey’s convictions. Although the hospital form mentioned above omits D.A.’s allegations of rape and digital penetration, it apparently was completed by a worker at the intake desk in the emеrgency room. The record does not reveal whether D.A. or her mother provided the information to the intake desk employee. If D.A.’s mother provided the information, then the form does nothing to establish inconsistency in D.A.’s testimony. The record reveals that D.A.’s mother was angry with D.A. about the allegations and did not want the police involved. In an effort to protect Rainey, her boyfriend, she may have minimized D.A.’s complaints when providing the information to the intake employee. In any event, emergency room paperwork indicates that D.A. did tell a doctor that Rainey had penetrated her with his finger and penis. Even assuming, arguendo, that D.A. initially did not disclose this information, the jury still reasonably could have credited her trial testimony that those events occurred. The other alleged inconsistencies in D.A.’s trial testimony were relatively insignificant.
{¶ 15} Although a weight-of-the-evidence argument permits a reviewing court to consider the credibility of witnesses, that review must be tempered by the principle that weight and credibility questions are primarily for the trier of fact. State v. Goldwire, Montgomery App. No. 19659, 2003-Ohio-6066, at ¶13, citing State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. “‘Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercise of thе discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder’s determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.’” Id. at ¶14, quoting State v. Lawson (Aug. 22, 1997), Montgomery App. No. 16288. Having reviewed the record before us, we believe the jury actеd well within its discretion in crediting D.A.’s testimony and finding her allegations to be true.
{¶ 16} Rainey’s remaining arguments do not persuade us otherwise. While he points out certain physical evidence that was lacking, the record contains testimony that few victims of child sexual abuse exhibit physical signs of the abuse. In the present case, however, a doctor testified that D.A. did have pari-vaginal petechial brusing. The doctor explained that this could be caused by an accidental
{¶ 17} Finally, we reject Rainey’s claim that D.A.’s testimony about him “touching” her did not support his convictions for gross sexual imposition. As the State points out,
{¶ 18} Having reviewed the record, weighed the evidence and all reasonable inferences, and considered the credibility of the witnesses, we cannot say that the
{¶ 19} In his secоnd assignment of error, Rainey claims the trial court erred in not allowing him to cross examine D.A. regarding a prior false accusation. This argument concerns defense counsel’s proffer that, when she was four or five years old, D.A. falsely had accused an older cousin of looking at her genitals. Defense counsel proffered that D.A. had lied about the incident because she was mad at her cousin. Applying
{¶ 20} Upon review, we find Rainey’s second assignment of error to be unpersuasive. A defendant is permitted under
{¶ 21} Rainey’s citation to State v. Smith (Nov. 8, 1995), Greene App. No. 94-CA-86, does not persuade us otherwise. In Smith, we held that the trial court unreasonably had limited cross examination of a child sexual-abuse victim concerning her prior false allegation that an unidentified assailant had grabbed her “out of the bushes.” This false allegation had been made sometime between 1989 and 1991. The victim’s allegations of sexual abuse by the defendant in Smith were made in 1991. Upon review, we reasoned that “when the essence of the case reduces to the credibility of witnesses—when there is no corroborating evidence
{¶ 22} Finally, we reject Rainey’s one-sentence argument that the trial court’s cross-examination ruling deprived him of his Sixth Amendment right to confront D.A. The constitutional right to confront witnesses is not absolute. Boggs, 63 Ohio St.3d at 422. The exclusion of evidence with minimal probative value under
{¶ 23} In his third assignment of error, Rainey argues that prosecutorial misconduct deprived him of a fair trial. In support, he cites four specific instances of alleged misconduct. The first two occurred during the prosecutor’s opening statement. Rainey faults the prosecutor for stating, “And we’ve got this Defendant. DNA cannot lie.” He also criticizes the prosecutor for emphasizing to the jury that slight penetration of the vagina was sufficient to prove rape. Third, Rainey claims the prosecutor engaged in misconduct during closing argument by saying: “And the State asks that you come back and tell this Defendant what he already [sic], he’s guilty of all charges.” The final instance of alleged misconduct involved the prosecutor cross examining Rainey about whether hе had made any statements to a certain detective.
{¶ 24} Upon review, we are unpersuaded by Rainey’s arguments. To prevail
{¶ 25} With regard to the prosecutor’s DNA remark, defense counsel objected and the trial court sustained the оbjection. Therefore, the jury presumably disregarded the statement. As for the prosecutor’s statements about slight penetration being sufficient to establish rape, we find nothing objectionable. The remarks were a correct statement of the law, and they were pertinent to the facts of the case. Indeed, during trial the State presented evidence about D.A. claiming that Rainey’s penis had gone “part way” inside of her. We also find no misconduct in the proseсutor urging the jury, during closing argument, to “come back and tell this Defendant what he already [sic], he’s guilty of all charges.” We do not dispute Rainey’s claim that the statement left the jury with the “notion that [he] was indeed guilty.” But that is the point of a prosecutor’s closing argument. We are unpersuaded by Rainey’s contention that the prosecutor’s statement argued facts not in evidence because he never admitted his guilt. The prosecutor did not say Rainey had admitted his guilt. Instead, the prosеcutor started to say that Rainey already knew he was guilty. This statement was not improper. If Rainey was guilty of the offenses charged, he certainly had to know it.
{¶ 26} Finally, we find no misconduct in the prosecutor’s cross examination. The prosecutor twice asked Rainey whether, after his arrest, he had told detective
{¶ 27} In his fourth assignment of error, Rainey contends the trial court erred in not declaring a mistrial when two jurors saw him in handcuffs. The jurors saw Rainey as he was being escorted off of an elevator during a recess. The trial court spoke with the jurors about the incident, and they both indicated that it would not impact their ability to be fair and impаrtial. The trial court found no prejudice and overruled Rainey’s motion for a mistrial.
{¶ 29} In his fifth assignment of error, Rainey contends the trial court erred in overruling his
{¶ 30} Upon review, we are unpersuaded by Rainey’s argument. “When the state fails to affirmatively ask the victim whether she was the spouse of the offender, [a trier of fact may] infer from the testimony or circumstances, if sufficient, that a
{¶ 31} In his sixth assignment of error, Rainey raises a claim of cumulative error. He cоntends the effect of the errors alleged in his first five assignments of error, even if individually harmless, cumulatively deprived him of a fair trial.
{¶ 32} It is true that separately harmless errors may violate a defendant’s right to a fair trial when the errors are considered together. State v. Madrigal, 87 Ohio St.3d 378, 397, 2000-Ohio-448. To find cumulative error present, we first must find multiple errors committed at trial. Id. at 398. We then must find a reasonable probability that the outcome below would have been different but for the combination of separately harmless errors. State v. Thomas, Clark App. No.2000-CA-43, 2001-Ohio-1353. In our review of Rainey’s other arguments, however, we found no multiple errors. Therefore, we find no cumulative error. The sixth assignment of error is overruled.
{¶ 33} Having overruled each of Rainey’s assignments of error, we affirm the judgment of the Montgomery County Common Pleas Court.
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DONOVAN, P.J., and FROELICH, J., concur.
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