STATE OF OHIO v. RODNEY ROARK
CASE NO. CA2012-04-036
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
1/28/2013
[Cite as State v. Roark, 2013-Ohio-217.]
David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
Stephan D. Madden, 810 Sycamore Street, 6th Floor, Cincinnati, Ohio 45202, for defendant-appellant
HENDRICKSON, P.J.
{1} Defendant-appellant, Rodney Roark, appeals his conviction and sentence in the Warren County Court of Common Pleas for sexual battery and rape. For the reasons discussed below, we affirm the decision of the trial court.
{2} On November 11, 2011, appellant was indicted on three counts of rape in violation of
{3} Counts 1 and 4 of the indictment alleged that appellant engaged in importuning from June 2001 to September 2001, and September 2001 to March 2002. Counts 2 and 3 alleged sexual battery and rape, respectively, from September 2001 to December 2001. Counts 5 and 6 alleged sexual battery and rape, respectively, from September 2001 to March 2002. Count 7 alleged sexual battery from January 2002 to December 2002. Count 8 alleged sexual battery from January 2004 to December 2004. Lastly, Counts 9 and 10 alleged sexual battery and rape, respectively, from June 2005 to September 2005.
{4} Appellant was tried before a jury. During trial, B.R. testified that in 2001, when she was 13 years old, appellant began sexually molesting her at their home in Warren County, Ohio. B.R. testified that one day during the summer of 2001, appellant told B.R. to go into his bedroom, where he played a pornographic movie and asked to see B.R.‘s breasts. When B.R. lifted up her shirt, appellant touched her breasts. Appellant then pulled down his pants, exposed himself, and told B.R. to look at his penis. When B.R. refused to look, appellant pulled up his pants, hugged B.R., and allowed her to exit the bedroom.
{5} B.R. testified that several days later, appellant called B.R. into his bedroom, where he was lying on his bed underneath a blanket. When B.R. entered the room, appellant uncovered himself. Appellant was naked with an erection and asked B.R. to touch his penis, but she refused. Appellant then took B.R.‘s hand and placed it on his penis, but B.R. quickly removed her hand. At that point, appellant ordered B.R. to place her mouth on his penis. When B.R. refused, appellant got “really upset,” but allowed B.R. to leave the bedroom.
{6} In September 2001, appellant started coming into B.R.‘s bedroom in the morning while she was preparing for school. B.R. explained that she and her brother were
{7} Several months later, appellant came into B.R.‘s bedroom in the middle of the night and demanded oral sex, but B.R. refused. Appellant then exited the bedroom and returned to the living room sofa, where he usually slept. However, appellant quickly returned and demanded oral sex again. After B.R. refused for a second time, appellant asked her if she had ever experienced cunnilingus, and she replied that she had not. Appellant then pulled B.R.‘s pants down and licked her vagina. Afterwards, appellant climbed on top of B.R. in bed, grabbed her arms, and told her that he was “going to show [her] what it was like to really have sex.” B.R. testified that she was backed up against the wall and that there was no room in her bed for her to escape. At that point, appellant inserted his penis into B.R.‘s vagina and B.R. began to cry. B.R. also testified that appellant “would have vaginal intercourse with [her] unless [she] was on [her] period and then he would make [her] give him oral sex.” B.R. explained that this behavior continued to occur two to three times per week.
{8} Next, B.R. testified that in 2002, when she was approximately 14 years old, appellant brought up the topic of masturbation with her. She also stated that appellant began giving her money without her mother‘s knowledge, and that he continued to have vaginal intercourse with her during that time.
{9} B.R. also stated that in 2004, when she was 16 years old, appellant threatened to take away her online computer games if she did not continue to have sex with him. B.R. stated that she had no choice but to continue to have sex with appellant, since her computer
{10} B.R. then recalled a particular day in the summer of 2005, before she turned 17, when appellant told her brother to go outside and mow the yard. While B.R.‘s brother was outside, appellant took B.R. into her room, removed her pants, and had sex with her. B.R. testified that although she did not resist that day, appellant had vaginal intercourse with her whether she resisted or not, and continued to do so until shortly before her eighteenth birthday.
{11} After B.R. testified, the state called B.R.‘s mother to the stand. Mother corroborated B.R.‘s testimony that between 2001 and 2005, they lived in a home in Warren County, Ohio. Mother also testified that she and appellant had opposite work schedules, and admitted that there were pornographic movies in their bedroom. Mother also stated that she did not tell B.R. to make any allegations against appellant.
{12} Next, Detective Jim Englehardt with the Warren County Sheriff‘s Office testified that he had investigated B.R.‘s allegations against appellant, and that during an interview, B.R. told him that appellant had subjected her to “ongoing sexual abuse starting from when she was 13 years of age up until when she was 18 years of age.”
{13} At the close of the state‘s case, the defense moved the court for a judgment of acquittal pursuant to
{14} The jury subsequently found appellant guilty of the remaining charges. On each of the three rape charges, the trial court sentenced appellant to serve five years in prison, to be served consecutively to each other. For each of the five sexual battery charges, the court sentenced appellant to one year in prison, to be served consecutively to each other
{15} Appellant timely appeals, raising three assignments of error for review.
{16} Assignment of Error No. 1:
{17} DEFENDANT-APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT FAILED TO MERGE THE RAPE CONVICTIONS WITH THE SEXUAL BATTERY CONVICTIONS.
{18} Appellant first argues that the trial court erred by failing to merge his convictions for rape and sexual battery because they are allied offenses of similar import.
{19} Appellant contends that his conduct for Count 2 (sexual battery) and his conduct for Count 3 (rape) each occurred in 2001, when he forced B.R. to perform oral sex in her bedroom. Appellant also claims that the sexual battery charge in Count 5 should merge with the rape charge in Count 6, because both occurred when “he entered B.R.‘s bedroom, removed her underwear, forced her down on the bunk bed and had vaginal intercourse with her.” Lastly, appellant believes that the sexual battery charge in Count 9 should merge with the rape charge in Count 10, because both occurred while B.R.‘s brother was mowing the lawn in 2005.
{20} Initially we note that appellant‘s trial counsel did not argue in the proceedings below that the rape and sexual battery convictions should merge. Appellant has therefore forfeited all but plain error on appeal.
{21} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio Supreme Court established the proper analysis for determining whether offenses qualify as allied offenses subject to merger pursuant to
{22} Here, appellant was convicted of three counts of forcible rape under
{23} Appellant was also convicted of five counts of sexual battery in violation of
No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply:
* * *
(5) The offender is the other person‘s natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person.
{24}
[V]aginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.
{26} We therefore proceed to the second step of Johnson, which requires us to determine whether appellant‘s rape and sexual battery offenses were committed by the same conduct, i.e., “a single act, committed with a single state of mind.” Johnson, 2010-Ohio-6314 at ¶ 49. Upon review, we find that appellant engaged in separate instances of sexual conduct over the course of four years, and therefore his convictions for rape and sexual battery were not allied offenses of similar import.
{27} As to Counts 2 and 3, the record demonstrates that between September 2001 and December 2001, appellant, who is B.R.‘s biological father, performed cunnilingus on B.R., i.e., sexual battery, and also engaged in a pattern of forcible fellatio, i.e., rape. As to Counts 5 and 6, the record shows that from September 2001 to March 2002, appellant subjected B.R. to an ongoing pattern of vaginal intercourse constituting sexual battery, as well as a pattern of forcible fellatio and vaginal intercourse constituting rape. As to Counts 9 and 10, the evidence demonstrates that in 2005, appellant had vaginal intercourse with B.R. while her brother mowed the yard, i.e., sexual battery, and that appellant had forcible vaginal intercourse with her until she was almost 18 years old, i.e., rape.
{28} From this, it is clear that the conduct that constituted the sexual battery offenses can be differentiated from the conduct constituting the rape offenses. In other words, appellant‘s convictions for sexual battery and rape were not based on a single act, committed with a single state of mind. Johnson, 2010-Ohio-6314 at ¶ 49. See also State v. Hale, 2nd Dist. No. 11CA0033, 2012-Ohio-2662, ¶ 23 (the fact that gross sexual imposition and sexual battery “were committed within the same span of time, or even on the same date” was not conclusive of whether defendant committed the offenses by the same conduct). As
{29} Appellant‘s first assignment of error is overruled.
{30} Assignment of Error No. 2:
{31} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT INTERFERED WITH AND QUESTIONED THE STATE‘S KEY WITNESS.
{32} Appellant next argues that the trial court improperly questioned a state witness, thereby prejudicing his rights and depriving him of due process and a fair trial. This argument lacks merit.
{33} “Evid.R. 614(B) permits a trial judge to interrogate a witness as long as the questions are relevant and do not suggest a bias for one side or the other.” State v. Vanloan, 12th Dist. No. CA2008-10-259, 2009-Ohio-4461, ¶ 6, quoting State v. Blankenship, 102 Ohio App.3d 534, 548 (12th Dist.1995). Absent a showing of bias, prejudice, or prodding of the witness to elicit partisan testimony, it is presumed that the trial court interrogated the witness in an impartial manner in an attempt to ascertain a material fact or develop the truth. State v. Baston, 85 Ohio St.3d 418, 426 (1999). Additionally, “[a] trial court‘s interrogation of a witness is not deemed partial for purposes of Evid.R. 614(B) merely because the evidence elicited during the questioning is potentially damaging to the defendant.” Vanloan at 7, quoting Blankenship at 559.
{34} However, the Ohio Supreme Court has cautioned that in a jury trial, “the court‘s participation by questioning or comment must be scrupulously limited, lest the court, consciously or unconsciously, indicate to the jury its opinion on the evidence or on the credibility of a witness.” State ex rel. Wise v. Chand, 21 Ohio St.2d 113, 119 (1970). Where
{35} The exchange of which appellant complains concerns the trial court‘s questioning of B.R. regarding the definitions of “vaginal intercourse” and “oral sex.” The questioning occurred at the end of the state‘s direct examination of B.R.:
THE COURT: Let me just ask, [B.R.], we‘ll take a break after my questions and we‘ll complete cross but I just have a couple of questions just to clarify. You made mention several times in the course of your testimony to vaginal intercourse. Did you mean the same conduct each time you referred to that particular phrase[?]
[B.R.]: Yes.
THE COURT: Okay, and what did you mean by vaginal intercourse? Sorry that this embarrasses you but can you tell us what you mean by that?
[B.R.]: He put his penis in my vagina.
THE COURT: You also made mention several times of oral sex. Would it be the same conduct each time you referred to oral sex?
[B.R.]: Yes.
THE COURT: Was that conduct?
[B.R.]: That he put my mouth on his penis.
{36} Appellant argues that the trial court‘s questioning enhanced B.R.‘s credibility and indicated bias, where the court essentially established the material elements of rape and sexual battery for the state. Appellant claims that prejudice ensued, where, but for the court‘s
{37} Upon review, we find that the court‘s questions, while not the most prudent of inquiries, did not go beyond the parameters of Evid.R. 614(B). First, the tenor and nature of the court‘s questions did not indicate that it was expressing an opinion as to the evidence or to B.R.‘s credibility. Rather, they were an attempt to clarify B.R.‘s previous testimony regarding the meanings of “vaginal intercourse” and “oral sex,” as well as an attempt to verify that B.R. was referring to the same type of conduct each time she used those terms. Moreover, we do not believe that the court was prodding B.R., because it did not proffer the definitions to her, but instead asked her to repeat her own definitions. Lastly, we do not see any prejudice stemming from the court‘s questions, where the state had already asked analogous questions, and B.R. had already described appellant‘s acts that constituted both vaginal intercourse and oral sex.
{38} Finally, we note that in reading the jury instructions aloud to the jury, the court stated,
It is your duty to carefully weigh the evidence, to decide all disputed questions of fact, to apply the instructions of the court to your findings and to render your verdicts accordingly. * * * Consider all the evidence and make your findings with intelligence and impartially and without bias, sympathy or prejudice so that the State of Ohio and the defendant, Rodney Roark, will feel that their case was fairly and impartially tried. If, during the course of the trial, the court said or did anything that you consider an indication of the court‘s view on the facts you are instructed to disregard it.
(Emphasis added.)
{39} Based on this instruction, the jury was to disregard anything that may have indicated the court‘s views during trial, and we must presume that the jury followed this instruction. See Vanloan, 2009-Ohio-4461 at 25-27.
{40} Because appellant has failed to demonstrate that the trial court‘s questions to
{41} Appellant‘s second assignment of error is therefore overruled.
{42} Assignment of Error No. 3:
{43} APPELLANT‘S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{44} In his third and final assignment of error, appellant claims that his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence.
{45} When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would support a conviction. State v. Alkire, 12th Dist. No. CA2008-09-023, 2009-Ohio-2813, 51. “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.” Id., quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{46} In determining whether a conviction is against the manifest weight of the evidence, the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines 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. Alkire,
{47} “Because sufficiency is required to take a case to the jury, a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency.” Id. at ¶ 43, quoting State v. Wilson, 12th Dist. No. CA2006-01-007, 2007-Ohio-2298, 35. “Thus, a determination that a conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.” Wilson at 35.
{48} Here, appellant claims that the state did not elicit testimony of the specific definitions of “vaginal intercourse and “oral sex,” and therefore his convictions must be reversed on manifest weight and sufficiency grounds. This argument lacks merit.
{49} The Ohio Supreme Court has held that “in order to sustain a conviction on rape charges predicated on either vaginal or anal intercourse, the state is required to establish beyond a reasonable doubt that the accused and the victim actually engaged in vaginal or anal intercourse.” State v. Ferguson, 5 Ohio St.3d 160, 167 (1983). The Court continued, stating, “[u]nder
{50} Here, in response to the state‘s questioning, B.R. clearly testified as to penetration. Specifically, she testified that appellant cornered her in her bed, “got up on top of [her] and * * * inserted his penis into [her] vagina.” See State v. Bell, 12th Dist. No. CA99-07-122, 2001 WL 432737, * 8 (Apr. 30, 2001) (“vaginal intercourse” occurs “when the penis is inserted into the vagina“). Thus, we find that the state proved that “vaginal intercourse” occurred beyond a reasonable doubt.2
{52} Additionally, the trial court instructed the jury that “sexual conduct” included “vaginal intercourse or fellatio between persons regardless of sex, and without privilege to do so, the insertion, however slight, of any part of the body into the vaginal or oral cavity of another.” The court then stated that vaginal intercourse meant “penetration of the penis into
{53} We further note that B.R.‘s testimony was buttressed by the testimony of Officer Englehardt, who interviewed B.R. and discovered that appellant had engaged in “ongoing sexual abuse starting from when she was 13 years of age up until when she was 18 years of age.” In addition, B.R.‘s mother corroborated B.R.‘s testimony as to appellant‘s work schedule, which facilitated appellant being alone with B.R. in the mornings. Mother also testified that appellant would often sleep on the couch, rather than their bedroom, which corroborated B.R.‘s testimony that appellant typically slept on the couch and came into her room one night, asked for oral sex, and had vaginal intercourse with her. Mother also testified that she did not tell B.R. to make any allegations, and there was no evidence that B.R. had any other motive to lie about appellant‘s conduct.
{54} This testimony, coupled with B.R.‘s testimony as outlined in our discussion of Assignment of Error No. 2, leads to the conclusion that there was competent, credible testimony that the jury could have reasonably relied upon to determine that appellant used force or the threat of force to compel B.R. to engage in sexual conduct with him in violation of
{55} Appellant‘s third assignment of error is overruled.
{56} Judgment affirmed.
BRESSLER, J., concurs.
PIPER, J., concurs separately.
PIPER, J., concurring separately.
{57} I concur with the majority opinion, but write separately because I do not share the majority‘s expressed concerns regarding the trial court‘s limited questioning of a witness after direct examination. The trial court‘s very limited questions for the purposes of clarification were entirely proper and appropriate.
{58} In reading the limited exchange conducted by the trial court “just to clarify,” it is clear that the trial court was merely eliciting testimony to ensure the accuracy of what the witness was alleging. In litigation the judge and jury must make tremendously significant decisions and ensuring that the testimony has been given accurately and correctly understood is an important function of the court. Because I see the trial court‘s brief questions as the opposite of an “unwarranted intervention,” I express my own views on the subject. Furthermore, it should be noted that both parties had an opportunity to subsequently address the witness with additional, or follow up, questions. Nothing the trial court did even remotely ran afoul of Evid.R. 614(B). The trial court‘s questions were entirely reasonable under the circumstances, and unbiased, thus appellant‘s assignment of error in this regard must fail.
Bressler, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.