2008 Ohio 6347 | Ohio Ct. App. | 2008
{¶ 3} Mr. Ralston's coworker testified that, after drinking a number of beers, Mr. Ralston asked why she was always so nervous around him and started kissing her. According to her, he grabbed her arms and told her to lie down. She testified that she told him to stop, that he was hurting her, and that she didn't want to do it, but he proceeded to vaginally rape her. She testified that he had difficulty "jam[ming] it in" and asked her what the problem was. According to her, she rarely engages in sexual intercourse because she has a medical condition that makes it painful and difficult.
{¶ 4} Both parties agree that, afterward, Mr. Ralston made a comment about her getting an abortion if she were to become pregnant. Mr. Ralston admitted that, when she responded that she didn't believe in abortion for birth control, he commented that, if she got pregnant, she might "end up in an accident on the road." He claimed that he was only joking, but the comment caused his coworker to "flip[] out and los[e] it." He claimed that, after that, he unsuccessfully tried to get her to calm down so that they would not lose their jobs. *3
{¶ 5} According to the coworker, when she said she would not have an abortion and tried to use a telephone to call for help, Mr. Ralston became violent, ripping the phone out of her hand and grabbing her by the hair and throat to push her to the floor in the instrumentation room. She testified that he threw her against a fan, breaking its face off. She further testified that, when she was finally able to break free, she positioned herself where she would be seen by security cameras so that he would not touch her again. She then walked out the front door and down to the street, where she flagged down an off-duty police officer.
{¶ 6} That officer testified that he found the woman staggering around in the road, clearly in distress. Other officers who arrived shortly thereafter described her as very emotional, crying, screaming, and completely unable to talk in a normal tone of voice. Police testified that the instrumentation room at the plant was found in disarray, with papers and debris scattered across the floor and empty beer cartons in the trash.
{¶ 8} Mr. Ralston was convicted of violating Sections
{¶ 9} Mr. Ralston admitted that he had sexual intercourse with his coworker on the floor at the plant that night. The only question was whether it was consensual or compelled by force. Mr. Ralston's coworker testified that it was not consensual. Viewing the evidence in a light most favorable to the State, it was sufficient to prove that Mr. Ralston forced his coworker to engage in sexual activity with him. To the extent that Mr. Ralston's first assignment of error addresses the sufficiency of the evidence, it is overruled.
{¶ 11} Mr. Ralston's coworker testified that, when he was on top of her, she was "pushing on him and trying to roll out from under him." According to her, the two had never *5
had any type of sexual or romantic relationship and she was actually scared of him. She also testified that she did not drink beer during her shift that night, but that she saw Mr. Ralston drink several. Mr. Ralston testified that his coworker drank 12 beers during the shift, but each of the police officers and a nurse testified that the coworker did not appear to be intoxicated, nor did anyone smell alcohol on her breath. The nurse who conducted the rape evaluation testified that the woman had a long scratch on her forearm with several smaller scratches around it and a number of small bruises on her arms, thighs, breast, and buttocks. She also testified that she was unable to complete the internal exam because the patient had a condition that made insertion of the speculum quite difficult and painful. The trial court may have reasonably believed the testimony of the coworker over that of Mr. Ralston, who claimed that the two were friends who occasionally engaged in sexual activity. Based on a review of all the evidence, this Court cannot say that the trial court lost its way and created a manifest miscarriage of justice in finding Mr. Ralston guilty of violating Sections
{¶ 13} In Colon, the Court held that a robbery indictment was defective because it failed to charge a mens rea and further held that the defendant had not forfeited the issue by failing to raise it in the trial court. Id. at ¶ 19. On a subsequent motion for reconsideration, the Supreme Court clarified and limited its holding. State v.Colon,
{¶ 14} In this case, Mr. Ralston has argued, for the first time on appeal, that the indictment omitted the mens rea of recklessness. He has not cited any authority for the proposition that recklessness is the appropriate mens rea for the actus reus of either rape or gross sexual imposition. He has also not argued that the omission resulted in "multiple errors that are inextricably linked to the flawed indictment."Id. Therefore, this Court must apply a plain-error analysis rather than the structural-error analysis championed by Mr. Ralston.
{¶ 15} "Rule 52(B) of the Ohio Rules of Criminal Procedure permits this Court to take notice of a plain error that affects a substantial right despite that error not having been brought to the attention of the trial court." State v. Lange, 9th Dist. No. 07CA009160,
{¶ 16} The indictment charged Mr. Ralston with engaging in "sexual conduct" with his coworker and "purposely compell[ing her] to submit by force or threat of force, in violation of Section
{¶ 17} Section
{¶ 19} Mr. Ralston has argued that the retroactive application of the law violates both the United States and Ohio Constitutions. He has argued that the Act was intended to be punitive in nature and, alternatively, that the punitive effect of the law negates any contrary legislative intent. These arguments were addressed by this Court in the recent case of State v. Honey, 9th Dist. No. 08CA0018-M,
{¶ 20} The defendant in Honey, made similar arguments challenging the constitutionality of the Adam Walsh Act as applied to an offense committed before the effective date of the Act. In that case, this Court held that "the additional registration content of the [Adam Walsh Act] does not violate the Retroactivity Clause of the Ohio Constitution with respect to adult offenders." Id. at ¶ 11. This Court determined that the Act was intended "to function as a civil, non-punitive scheme" and that "the registration and verification provisions . . . are not excessive with respect to its non-punitive purpose." Id. at ¶ 14, ¶ 18; seeid. at ¶ 12-19 (noting that the placement of the Act within Title 29 of the Ohio Revised Code, the classification system based *9 on the offense, and the consequences of classification do not violate the Ex Post Facto Clause). Therefore, this Court held that the Act did not violate the United States Constitution's prohibition on ex post facto laws. Id. at ¶ 19. Based on the reasoning of this Court inState v. Honey, Mr. Ralston has failed to demonstrate plain error under Rule 52(B) of the Ohio Rules of Criminal Procedure. His third assignment of error is overruled.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30. *10
Costs taxed to appellant.
*1MOORE, P. J. SLABY, J. CONCUR