State v. RuffState v. Ruff
{¶1} Kenneth Ruff was convicted of the rape and aggravated burglary of three women, of the attempted rape of a fourth women, and of the sexual battery of a minor. He raises a number of arguments on appeal, most of which we do not find to be meritorious. We do not believe that the verdicts were against the weight or sufficiency of the evidence; nor do we believe that the trial court erred by refusing to require separate trials for each victim, by allowing the admission of a statement made to a nurse by one of the victims who died before trial, or by refusing to allow prior inconsistent statements to be proven by extrinsic evidence. We do agree with Mr. Ruff, however, that the trial court should have merged the convictions for aggravated burglary with the rape convictions because the state relied upon the same conduct to prove both offenses.
Background
{¶2} Mr. Ruff was convicted of the sexual battery of K.P. In 2002, K.P. was a 14-year old, who had run away from home and was walking with a friend in the Carthage neighborhood of Cincinnati. The two girls accepted a ride from a male acquaintance, and picked up Mr. Ruff somewhere along the way. The men bought the girls a bottle of liquor, and K.P. became so drunk that she urinated and vomited on herself in the backseat of the car. The group eventually ended up at an apartment, where someone removed K.P.‘s soiled pants and left her lying on a mattress in the bedroom. K.P. testified that she awoke to find Mr. Ruff holding her down by the throat and telling her that he was raping her.
{¶3} Next for Mr. Ruff was the attempted rape of K.H. In July 2008, Mr. Ruff stopped by K.H.‘s apartment to visit K.H.‘s sister. When the sister left, Mr. Ruff came in to talk to K.H., who was watching television in her bedroom. After engaging in small talk for a while, K.H. asked Mr. Ruff if he could massage her back. Mr. Ruff
{¶4} Mr. Ruff was convicted of the aggravated burglary and rape of three different women in the Westwood neighborhood in incidents that spanned a nine-month period in 2009. The first victim, K.B., was suffering from mental illness and living in a group home with two other women. On the night in question, she took sleep medication, which made her kind of “foggy.” She awoke in the middle of the night to find Mr. Ruff raping her. When K.B. started crying and screaming for help, Mr. Ruff told her “to shut up or I will kill you.” When K.B. continued screaming, Mr. Ruff took off running out the door.
{¶5} Mr. Ruff‘s next victim, S.W., suffered from a variety of health issues: her toes had been amputated as a result of diabetes, causing her to move around with the assistance of a walker and wheelchair; high blood pressure and other ailments necessitated an oxygen tube and CPAP machine at night; and she wore protective underwear for incontinence issues. S.W. was home alone when Mr. Ruff knocked on her door, looking for S.W.‘s estranged husband. S.W. explained that her husband did not live there anymore, and Mr. Ruff left. Later that night, S.W. awoke to find Mr. Ruff in her bedroom. She tried to pull a bed sheet over herself, but Mr. Ruff pushed her down, tore off her protective underwear and raped her. When S.W. attempted to resist, he choked her and said, “If you don‘t stop fighting, I‘m going to hurt you.” When he had finished raping S.W., Mr. Ruff put his clothes back on and walked out as if nothing had happened. He told S.W. that he was sorry and that he “didn‘t mean to do it.”
{¶7} Detective Deron Hall investigated the rape of P.F. A DNA test in P.F.‘s case was matched to DNA in the K.P. and K.B. cases. Detective Hall learned further that K.B. had referred to her rapist as “Kenny-Ken.” Armed with this information, the detective began canvassing Westwood using the first name Kenny and the physical description P.F. had given of her rapist. Detective Hall developed Mr. Ruff as a suspect, and asked him to consent to a DNA test. When Mr. Ruff‘s DNA sample matched the evidence that police had obtained in their investigation of the sexual assaults of P.F., K.B., and K.P., Detective Hall arrested Mr. Ruff.
{¶8} Mr. Ruff testified at trial and provided the jury with a different version of events. He claimed that he had consensual sex with four of the women and that each had a reason to falsely report a rape. With respect to the other victim, 75-year-old P.F., Mr. Ruff testified that he had tried to rob her of money on the night of the rape and that the DNA in her underwear must have somehow come from that encounter. He also presented testimony from Detective Stephanie Fassnacht, who had investigated K.P.‘s sexual assault. Detective Fassnacht testified that K.P. and her friend had initially told her that they had been abducted at knife point and at gunpoint, but during her investigation she discovered that that they had voluntarily accepted a ride with some adult men.
Joinder of the Offenses
{¶10} In his first assignment of error, Mr. Ruff argues that the trial court committed reversible error by refusing to sever the counts relating to each victim. He contends that the jury could not have evaluated the evidence relating to each of the crimes separately, and that he was prejudiced as a result of the joinder of the charges against him.
{¶11} The law favors the joinder of multiple offenses in a single trial. State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981); see
{¶12} We find no prejudice from the trial court‘s refusal to sever the charges relating to each victim. The offenses in each indictment involved five different victims and were analytically and logically separate. The state‘s presentation of the evidence with respect to each of the charges was direct and
Hearsay and Confrontation Clause Issues
{¶13} Mr. Ruff next argues the trial court erred as a matter of law by allowing hearsay to be admitted into evidence, which violated his rights under the Confrontation and Due Process Clauses of the United States and Ohio Constitutions. Specifically, Mr. Ruff argues that it was improper to allow Delores Holtmann, a Sexual Abuse Nurse Examiner (“SANE“) who examined P.F. after the rape, to read a statement that P.F. had made to her at the hospital. P.F. had died prior to trial and was thus unavailable to testify.
{¶14} P.F. was interviewed by Detective Hall the night of her rape. Detective Hall testified that he noticed visible bruising and had her transported to the hospital for treatment. Nurse Holtmann interviewed P.F. at the hospital. The primary purpose of the interview, according to Nurse Holtmann, was for medical treatment and diagnosis. P.F. recounted that she had been sitting on the couch when her assailant came in and demanded money from her. She then described in detail her rape and other physical abuse that Mr. Ruff inflicted in the process, including choking her and hitting her with a cell phone. After he finished raping her, she explained further, he demanded a cigarette, took a can of Diet Pepsi, and walked out the door.
{¶15} Mr. Ruff objects to Nurse Holtmann‘s verbatim recitation of P.F.‘s statement claiming that his constitutional right to confront the witnesses against him was violated because P.F. did not testify at trial and he did not have a prior opportunity to cross-examine her. The United States Supreme Court has held that out-of-court
{¶16} The Ohio Supreme Court has held that statements made by an adult victim of sexual assault to a nurse working in a specialized medical facility for sexual-assault victims were nontestimonial. State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 2 and 47. “A testimonial statement,” explained the court, “includes one made ‘under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” Id. at paragraph one of the syllabus, quoting Crawford at 52. “In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant‘s expectations.” Id. at paragraph two of the syllabus. The court noted that even though the specialized facility partly served a prosecutorial function, its “primary” function was the care of patients. Id. at ¶ 39. Thus because the “victim could reasonably have believed that * * * [her] statement would be used primarily for health-care purposes,” the statement was nontestimonial. Id. at ¶ 39-40.
{¶17} A year later, the Ohio Supreme Court held that where hearsay statements by a child declarant to a police officer were at issue, the appropriate standard to determine if such statements were testimonial was not the objective-
{¶18} In State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, the court applied this “primary purpose” test to statements made to a social worker at a child-advocacy center. Because child-advocacy centers have a “dual purpose” of gathering forensic information and gathering medical information for diagnosis and treatment, the court held that the trial court was required to examine each statement and determine if it was testimonial or nontestimonial. Id. at ¶ 34-41. Statements made primarily for a forensic or investigative purpose are testimonial and thus inadmissible under the confrontation clause where the declarant is unavailable; but statements made for diagnosis and treatment are nontestimonial and thus admissible without offending the confrontation clause. Id. at paragraphs one and two of the syllabus. The court found that statements about sexual acts performed by the perpetrator and other physical details about the abuse inflicted on the victim were necessary for the proper medical diagnosis and treatment of the victim in that case and, therefore, were nontestimonial. Id. at ¶ 37.
{¶19} It is not clear that the Ohio Supreme Court would apply Arnold beyond the context of a child victim and a child-advocacy center. In reaching its decision, the court noted the “unique” nature of such centers with their dual forensic and medical purpose. Id. at ¶ 33. Further, there is nothing in Arnold which disavows the court‘s holding in Stahl. Nevertheless, even if we were to apply Arnold beyond the context of a child-advocacy center, we still find no merit to the assignment of error.
{¶21} Similarly, P.F.‘s statements do not constitute inadmissible hearsay.
K.P.‘s Prior Inconsistent Statement
{¶22} Mr. Ruff argues the trial court erred by preventing him from impeaching K.P. by admitting extrinsic evidence of a prior inconsistent statement. Defense counsel
{¶23} We believe the trial court acted well within its discretion.
Extrinsic evidence of a prior inconsistent statement by a witness is admissible if both of the following apply:
(1) If the statement is offered solely for the purpose of impeaching the witness, the witness is afforded a prior opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness on the statement or the interests of justice otherwise require;
(2) The subject matter of the statement is one of the following:
(a) A fact that is of consequence to the determination of the action other than the credibility of a witness;
(b) A fact that may be shown by extrinsic evidence under
Evid.R. 608(A) ,609 ,616(A) ,616(B) or706 ;(c) A fact that may be shown by extrinsic evidence under the common law of impeachment if not in conflict with the rules of evidence.
{¶24} Here K.P. admitted on cross-examination that she had initially lied to the police officers about being abducted. As a consequence, her prior testimony on this point was not inconsistent with her trial testimony and there was no need for the admission of extrinsic evidence. See State v. Young, 2d Dist. Montgomery No. 23438, 2010-Ohio-5157, ¶ 129. The other matters upon which defense counsel sought to admit extrinsic evidence—whether she had told police initially that Mr. Ruff put his hands on her throat and what she had said about her sexual history—were collateral to issues of the defendant‘s guilt. Mr. Ruff was charged with unlawful sex with a minor and sexual battery.1 Defense counsel had admitted in his opening statement that Mr. Ruff had had sex with K.P., a minor. The sexual-battery charge required only a showing that “[t]he offender knows the other person‘s ability to appraise the nature of or control the other person‘s own conduct is substantially impaired.”
Sufficiency and Weight-of-the-Evidence Claims
{¶25} In his fourth assignment of error, Mr. Ruff challenges the weight and sufficiency of the evidence adduced at trial to support his convictions.
{¶27} In regard to the manifest-weight argument, Mr. Ruff‘s primary argument is that the state‘s witnesses were not credible. Matters as to the credibility of witnesses, however, were for the jury to determine. See State v. Waddy, 63 Ohio St.3d 424, 430, 588 N.E.2d 819 (1992); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Our review of the entire record fails to persuade us that the jury clearly lost its way and created such a manifest miscarriage of justice that we must reverse Mr. Ruff‘s convictions and order a new trial. See State v. Thompkins, 78 Ohio St.3d 380, 386-87, 678 N.E.2d 541 (1997). We, therefore, overrule this assignment of error.
Sentencing Errors
{¶28} Mr. Ruff asserts various sentencing errors in his fifth assignment of error. He argues that the trial court erred by failing to find that his convictions for aggravated burglary and rape with respect to P.F., K.B., and S.W. are allied offenses pursuant to
{¶29} Because Mr. Ruff‘s allied-offense argument is dispositive of his fifth assignment of error, we address it first. Mr. Ruff was found guilty of three counts of rape under
(A) No person, by force, stealth or deception shall trespass into an occupied structure * * * when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical harm on another;
(2) The offender has a deadly weapon or dangerous ordnance on or about the offender‘s person or under the offender‘s control.
Mr. Ruff was convicted under the first subsection,
{¶30} A few years ago—that is, prior to the Ohio Supreme Court‘s decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061—the question presented here would have been a fairly easy one. It was widely understood that aggravated burglary under
{¶31} Johnson, however, changes the analysis. In the syllabus of that case, the Ohio Supreme Court held that “when determining whether two offenses are allied offenses of similar import subject to merger under
{¶32} Subsequent to Johnson, courts have concluded that aggravated burglary under
{¶33} In the present case, each aggravated burglary was not completed until Mr. Ruff raped his victims, and the state necessarily relied upon evidence of the rapes to establish the elements of the aggravated-burglary offenses. The conduct relied upon to establish rape—sex compelled by force—was the same as the conduct relied upon by the state to establish the “physical harm” component in
{¶34} The dissent protests that Mr. Ruff‘s conduct is best understood as two offenses—breaking into the victims’ homes and raping them—and says that he should be separately punishable for both. But of course he is separately punishable for both. He could have been convicted of simple burglary under
{¶36} In this case, however, the physical harm that constituted the “aggravating” factor in each aggravated burglary was the rape. As a consequence, we must, under State v. Johnson, reverse Mr. Ruff‘s separate convictions for the aggravated burglary and rape of P.F., K.B., and S.W. Our decision today is not—as the dissent suggests—an attempt to compensate for some sort of past jurisprudential sins. We simply apply the law. And unless and until the Supreme Court sees fit to reconsider its holding in Johnson, we will not shirk our duty to adhere to its holding.
{¶37} We sustain that part of Mr. Ruff‘s fifth assignment of error challenging the multiple sentences for these offenses. His remaining arguments, which challenge the trial court‘s imposition of consecutive sentences and the aggregate term of his incarceration, are moot. See
{¶38} We, therefore, vacate the sentences for the aggravated-burglary and rape counts relating to P.F., K.B., and S.W., and remand this cause so that the state may elect which allied offense it will pursue for purposes of sentence and conviction. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraphs one and two of the syllabus. We affirm the trial court‘s judgment in all other respects.
Judgment accordingly.
CUNNINGHAM, P.J., concurs.
DINKELACKER, J., concurs in part and dissents in part.
{¶39} Because I believe that the aggravated-burglary and rape offenses are not allied offenses of similar import, I must dissent.
{¶40} In a previous decision, I have noted my growing concern with the development of post-Johnson jurisprudence in Ohio. See State v. Anderson, 1st Dist. Hamilton No. C-110029, 2012-Ohio-3347 (Dinkelacker, J., dissenting). The majority‘s analysis in this case continues the trend of overcompensating for the sins of the past. There is no interpretation of Johnson that requires a finding that “the state relied upon the same conduct to support the two offenses, and that the offenses had been committed neither separately nor with a separate animus as to each * * *.”
{¶41} Consider the crime of aggravated burglary. It has been widely held that when an individual commits the crime of aggravated burglary and there are two individuals in the dwelling, the offender can be convicted of only one offense. See, e.g., State v. Marriott, 189 Ohio App.3d 98, 2010-Ohio-3115, 937 N.E.2d 614 (2d Dist.). This is because ”
{¶42} Under
{¶43} Perhaps the best illustration of the separation of these two offenses is the separate harms they caused the victims. The women in this case no longer feel safe in their homes, and have been physically violated in the most intimate, personal way possible. To characterize what occurred to them as merely the “physical harm” of an aggravated burglary is unthinkable. This court has noted that when the conduct so exceeds the degree required to commit one offense, a separate animus can be demonstrated as to a second offense. State v. Whipple, 1st Dist. Hamilton No. C-110184, 2012-Ohio-2938, ¶ 39. The harm suffered by these women so exceeds the level of harm required to support an aggravated-burglary conviction that to hold that they are not grossly disproportionate is simply disingenuous.
{¶44} When addressing aggravated burglary, the Eighth Appellate District warned that allowing multiple convictions when there are multiple persons present was contrary to the history of the offense. In so warning, it also presaged the outcome of this case:
It would transform burglary from an offense against the sanctity of the dwelling house into an offense against the person. Logically, one of the unintended consequences of such a transformation may be that the act of burglary, which is completed as soon as the dwelling is entered with the requisite intent, will be viewed as an allied offense to the crimes the defendant commits therein.
State v. Adkins, 8th Dist. Cuyahoga No. 95279, 2011-Ohio-5149, ¶ 41.
{¶45} If the average person were asked what Ruff did, he or she would respond that Ruff broke into the victims’ homes and raped them—two offenses. He or she would easily and logically understand that Ruff could properly be punished for both of them. Ruff violated both the “sanctity of the dwelling house” and the persons of these women. They were two offenses for which he can and should be separately punished.
{¶46} I must note that this court‘s opinion, which I authored, in State v. Shears, 1st Dist. Hamilton No. C-120212, 2013-Ohio-1196, cited by the majority, involved a determination that the crimes of aggravated burglary and aggravated robbery must be merged. The opinion concluded that
[t]he problem with these two separate convictions is that the conduct that provides the aggravation for both counts is the same: the physical harm that Shears caused to Mr. Batawana in order to rob him. Since this was the same conduct that was committed with the same animus, the two counts must merge.
{¶48} Such is not the situation in this case. Rape, as defined under
{¶49} In this case, Ruff separately committed aggravated burglary and rape in each instance. For these reasons, I would hold that Ruff‘s rape and aggravated-burglary convictions were not subject to merger. In all other aspects, I concur with the opinion of the majority.
Please note:
The court has recorded its own entry this date.