Case Information
*1
[Cite as
State v. Wayne
,
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25243 Plaintiff-Appellee :
: Trial Court Case No. 2011-CR-3424 v. :
: KEITH O. WAYNE : (Criminal Appeal from
: (Common Pleas Court) Defendant-Appellant :
:
. . . . . . . . . . .
O P I N I O N
Rendered on the 15th day of November, 2013.
. . . . . . . . . . .
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Rеg. #0069384, 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 LUCAS W. WILDER, Atty. Reg. #0074057, 120 West Second Street, Suite 400, Dayton, Ohio 45402
Attorney for Defendant-Appellant
. . . . . . . . . . . . .
HALL, J., Keith O. Wayne appeals from his conviction and sentence on charges of rape and
gross sexual imposition. Wayne advances six assignments of error on appeal. First, he challenges the legal
sufficiency and manifest weight of the evidence to support his convictions. Seсond, he contends the trial court erred in denying his motion for a continuance of trial to secure the attendance of witnesses. Third, he claims the trial court erred in admitting two photographs into evidence. Fourth, he asserts that the jury returned impermissibly inconsistent verdicts. Fifth, he alleges ineffective assistance of trial counsel. Sixth, he maintains that the trial court erred in allowing evidence of the victim’s sexual orientation. The record reflects that Wayne was convicted of the charges set forth above
based primarily on the testimony of the victim, A.J., who was seventeen years old at the time of the incident in question. A.J. testified at trial that she was babysitting her sister’s two young children at her sister’s apartment on October 3, 2011. After one of the children fell asleep, she took the other child, her three-year-old nephew, into an interior hallway outside the apartment door. While there, she saw Wayne and his friend, Kevin Brown, enter the hallway. A.J. knew both men, and she bеgan talking to them. A.J. eventually took her nephew to Wayne’s apartment, which was one floor below her sister’s apartment. After Brown left, Wayne sat next to A.J. on a couch and attempted to become romantic. When Wayne tried to “suck on [A.J.’s] neck,” she got up and returned to her sister’s apartment with her nephew. Wayne later knocked on A.J.’s door after she put her nephew to bed. She opened the door and agreed to go back downstairs with him. Once inside Wayne’s apartment, A.J. looked at his new clothes, shoes, and jewelry. At one point, Wayne announced that he was having trouble with his girlfriend. He offered A.J. a drink and asked whether anyone would mind if they found out he was trying to talk to her. A.J. “didn’t know what to think.” She responded by telling Wayne she was attracted to females and decided to leave. A.J. testified that Wayne forcibly stopped her from doing so. According to A.J., he also placed his hand inside her pajama pants and touched her vagina despite her pleas for him to stop. He then forced her into his bedroom where he pushed her down and had sex with her from behind. A.J. testified that Wayne then turned her around and had sex with her from the front. A.J. objected throughout the incident and repeatedly asked him to stop. After Wayne finished, A.J. pulled her pants up and returned to her sister’s apartment. She sat crying and waited for her sister to get home. When her sister arrived, A.J. stated that Wayne had raped her. The following morning, A.J.’s sister reported the inсident to the police. A.J. then went to the hospital for an examination. A.J.’s sister testified for the State but had no first-hand knowledge about the incident. Detective Theresa Lawson was the third prosecution witness. She testified about
interviewing A.J. at the hospital and then visiting Wayne’s apartment to take photographs. The final prosecution witness was Cathleen Hackett, a registered nurse. Hackett testified about performing a sexual-assault examination. Hackett noted somе bruising on A.J.’s labia and cervix. Hackett testified that such bruising was common with forcible penetration. After the State rested its case, defense counsel sought a continuance to locate
three witnesses who had not been subpoenaed and whose whereabouts remained unknown. The trial court denied the motion, and the defense rested without presenting any evidence. The jury found Wayne guilty on two counts of rape and one count of gross sexual imposition. It acquittеd him on one count of kidnapping. The trial court merged the rape convictions as allied offenses of similar import. It then imposed concurrent prison terms totaling nine years. This appeal followed. In his first assignment of error, Wayne challenges the legal sufficiency and manifest weight of the evidence to sustain his convictions. In support, he questions the credibility of A.J.’s testimony. He argues that she admitted several “inconsistencies” or “lies” at trial. He also suggests that any sexual activity was consensual and that the State presented no evidence of force being used. When a defendant challenges the sufficiency of the evidence, he is arguing that
the State presented inadequate evidence on an element of the offense to sustain the verdict as a
matter of law.
State v. Hawn
,
сonviction is challenged on appeal as being against the 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.”
State v. Thompkins
, 78 Ohio St.3d 380, 387,
credibility, we give substantial deference to a jury’s decision whether, and to what extent, to
believe a witness.
State v. Harris
, 2d Dist. Montgomery No. 23915,
The primary discrepancy he raises is whether A.J.’s three-year-old nephew accompanied her to his apartment. As set forth above, she took her nephew with her the first time she visited his apartment. She then put him to bed before returning the second time. A.J. initially told investigators and others that her nephew was with her the second time when she was raped. Wayne asserts that A.J. lied аbout this fact. The State contends she was confused and mistaken. Either way, A.J. admitted the discrepancy, which the jury was free to take into consideration when evaluating her credibility. On cross examination, defense counsel also attempted to point out other minor discrepancies in A.J.’s statements. The jury was free to consider those issues too when evaluating her accusations. Despite the alleged discrepancies, the jury had the discretion to credit A.J.’s testimony that Wayne grabbed her, restrained her, pushed her down, and engaged in forcible sexual activity with her. This is not the exceptional case where the evidence weighs heavily against Wayne’s convictions. The first assignment of error is overruled. In his second assignment of error, Wayne contends the trial court erred in
denying his motion for a continuance to secure the attendance of three witnesses. The record reflects that defense counsel made the request after the State rested its case. Two of the three witnesses appeared on Wayne’s witness list. The third did not. None of them had been subpoenaed, and their whereabouts remained unknown. Neither Wayne nor his attorney had spoken to the witnesses on the witness list. Defense counsel proffered that they were residents of the apartment building and would testify about the absence of loud noise or music coming from Wayne’s apartment. The third witness, who was not disclosed on the witness list, purpоrtedly would testify “that he knew [A.J.] was lying about the allegations that have been made against [Wayne].” (Trial Tr. Vol. II at 333-335). In denying the motion for a continuance, the trial court explained:
The Court is sort of disheartened here [by] the fact that we’re in the second day of trial and we are asking for a continuance. In regards to the last witness, the Court finds that there was no notice pursuant to the local rules or Rule 16 of the rules of criminal procedure to [the] identity [of] that witness. And therefore the Court would not allow any continuance based upon that for that witness. From what I understand the other two witnesses would testify that there may or may not have been noise coming from the Defendant’s apartment on this date and time * * *.
* * * I do not feel that your motion to continue the trial is warranted and the Court is going to overrule it. Obviously you have some time right now if you can locate these witnesses and bring them forth, at least the first two, I certainly would entertain if they’re here. But we’re going to stаrt the trial at one p.m. and go forward. I feel that you had adequate time to contact these individuals, to get them under subpoena. And this trial has been set. You’ve known about the trial date. Defendant has known about the trial date. And it appears that you’ve made some effort to find them. But I’m not going to, you know, hold up the trial because of that. This matter should have been brought to the Court’s attention if there was problems in locating witnesses and getting them here. If this matter was brought to the Court’s attention earlier, then we might have done something to assist and had some investigator track them down or the police track them down, or do something, [to] assist in getting them here. But at this late date and without notification to the Court that’s not going to be feasible. And also the Court is looking at the nature of their testimony as well in regards to this case. So base—for all these reasons I’m going to overrule your motion * * *.
(Trial Tr. Vol. II at 336-337). A trial court has broad discretion to grant or deny a continuance. State v. Bocock ,
2d Dist. Montgomery No. 22481,
two photographs into evidence. Specifically, he challenges the admission, over objection, of photographs depicting bruises to A.J.’s labia and cervix. Wayne contends the probative value of the photographs was substantially outweighed by the danger of unfair prejudice because they added nothing to nurse Hackett’s testimony and were inflammatory. We review a trial court’s admission of photographs for an abuse of discretion.
State v. Lockhart
, 2d Dist. Montgomery No. 15955,
{¶ 19} In his fourth assignment of error, Wayne asserts that the jury returned inconsistent verdicts. He contends his acquittal on the kidnapping charge is inconsistent with his conviction on the rape and gross sexual imposition charges. In particular, Wayne questions how the jury could have found that he engaged in sexual activity by force for purposes of rape and gross sexual imposition if the State did not prove restraint for purposes of kidnapping. Upon review, we find Wayne’s argument to be unpersuasive. Even if the rape
and gross sexual imposition convictions logically were inconsistent with the kidnapping
acquittal—an issue we need not decide—that would not warrant reversal of the convictions.
Inconsistent responses to different counts in an indictment will not render a conviction invalid.
State v. Carver
, 2d Dist. Montgomery No. 21328,
attorney’s performance was deficient and that the deficient performance prejudiced him.
Strickland v. Washington
,
unsuccessfully looked for the witnesses. Because their whereabouts were unknown, defense counsel could not subpoena them. (Trial Tr. Vol. II at 330-335). Moreover, as explained above, one of the witnesses, the victim’s brother, had not been disclosed. With or without a subpoena, the trial court would have beеn correct if that witness was excluded. Moreover, the defendant apparently had told his trial counsel that the victim’s brother had previously been in jail with the defendant and the brother had disclosed to the defendant “he knew [his sister] was lying.” That statement, by itself, would have been inadmissible. In regard to the other two witnesses, defense counsel’s proffer was that at the time of the offense, those witnesses lived in other apartments in they building and, purportedly, they would have said that they did not heаr loud music or notice unusual activity on the night in question. Defense counsel actually had no idea what these witnesses would say, however, because he had been unable to contact them. The victim had testified that the music in Wayne’s apartment was “loud” (Trial Tr. Vol. I at 166 & 177), but there was no testimony about how loud or whether it could be heard outside the apartment. From the victim’s remaining testimony it was apparent the persons present in Wayne’s apartment could hear each other speak. Even assuming, arguendo, that the other two witnesses had been home and had not heard any noise or noticed any commotion, we find the record fails to support any reasonable probability that such testimony would have altered the outcome below. 11 As for defense counsel pressuring Wayne not to testify, the record does not
support the claim. At trial, Wayne acknowledged that it was his decision not to testify. (Trial Tr. Vol. II at 338). He did not mention being pressured by his attorney. Absent any evidence to support Wayne’s claim, we find no ineffective assistance of counsel. The fifth assignment of error is overruled. In his sixth assignment of error, Wayne contends the trial court erred in allowing
evidence of A.J.’s sexual orientation. This argument concerns A.J.’s own testimony that she is attracted to females and that she told Wayne so before he raped her. (Trial Tr. Vol. I at 158, 173). The State apparently elicited this testimony to help negate any argument that the sexual activity was consensual. Wayne argues that A.J.’s testimony about being attracted to females violated
Ohio’s rape-shield statute.
[1]
We disagree. With some exceptions, the statute precludes evidence
of the victim’s sexual activity.
See
R.C. 2907.02(D). The statute says nothing about evidence of
the victim’s attraction to members of a particular gender being inadmissible. Therefore, we
conclude that A.J.’s testimony about being attracted to females did not violate the rape-shield
statute.
Cf. State v. Barnes
, 10th Dist. Franklin No. 04AP-1133,
lead case upon which he relies, People v. Murphy , 919 P.2d 191 (Colo.1996), the Colorado Supreme Court held that Colorado’s rapе-shield statute, which generally bars evidence of a victim’s “sexual conduct,” also precludes evidence of a victim’s “sexual orientation.” In support of its decision, the Murphy court reasoned: “Evidence of past sexual conduct is closely related to evidence of sexual orientation. We therefore conclude, as did the court of appeals, that the Rape Shield Statute’s prohibition against evidence of a rape victim’s past sexual conduct also precludes evidence of sexual orientation.” Id . at 195. Upon review, we decline to adopt the Colorado Supreme Court’s reasoning.
Reading “sexual conduct” to mean “sexual orientation” requires judicial rewriting of an unambiguous statute. Ohio law expressly defines sexual conduct. It means “vaginal intercourse between a male and a 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, or other object into the vaginal or anal opening of another.” R.C. 2907.01(A). A.J.’s testimony that she is attracted to females is not evidence of “sexual conduct.” 13 Therefore, the rape-shield statute was inapplicable to her testimony. [2] The sixth assignment of error is overruled.
{¶ 29} The judgment of the Montgomery County Common Pleas Court is affirmed.
. . . . . . . . . . . . .
WELBAUM, J., concurs.
FROELICH, J., concurring: I agree that the rape shield statute was not applicable to A.J.’s testimony, but
write briefly to indicаte that evidence of sexual orientation could be shielded in other situations. The only testimony in this case about sexual orientation was:
Q. This may sound a little bit of an odd question, but, [complainant], are you romantically attracted to men or women?
A. Females.
Q. How long have you known that?
A. Since ninth grade.
Q. In fact, you currently have a girlfriend?
A. Yes, sir.
Q. How long have you been with her?
A. Two years. And at Tr. 173 in partial response to the prosecutor’s question about what was
happening with the defendant:
A. . . . I wasn’t recall you trying to come on to me or anything. I’m - - I like females.” Rape shield laws were enacted in part to prevent an infеrence that a person with
an “unchaste character” is more likely to have consented to sexual conduct. See, e.g., Nicolas , “They say he’s gay,” The Admissibility of Evidence of Sexual Orientation, 37 Georgia Law Review 793 (Spring 2003). For example, a defense attorney should not be able to ask a witness whether she is “romantically attracted” to men to create an inference that the complainant was more likely to have consented. Here, the State asked questions of the сomplainant and made an argument in
order explicitly to infer that she was less likely to have consented to sexual conduct with the defendant. Another concern is that the prosecutor could “open” the door to cross-examination of the complainant about her sexual history, thus defeating the goal of keeping the trial about whether there was force between these people on this day. From this very limited testimony, the prosecutor made the following rebuttal
closing argument (Tr. 363):
“Now, hasn’t ever been brought up much here, but exactly why is this girl going down to the apartment to have sex with a man when she’s never had sex with men before? Unrefuted testimony two years now she’s been a lesbian. Defense has not touched this at all because he has no explanation why all of a sudden this girl decides I like girls, I like girls, you know what, I think I’ll have sex with somebody I’ve only been over to his house once. Does that sound reasonable.” The prosecutor’s conclusions and argumеnt were not supported by the testimony
of the 17-year-old that she is “romantically attracted” to females and currently had a girlfriend. However, there was no objection and defense counsel could have made a strategic decision not to draw attention to the comment. Similarly, defense counsel could have decided not to object to the initial questions since he knew from the motion in limine that the objection would be overruled and he did not want the jury to foсus on this particular testimony. I would find that the testimony presented was irrelevant; however, there was no
objection and there is no plain error.
. . . . . . . . . .
Copies mailed to:
Mathias H. Heck
Andrew T. French
Lucas W. Wilder
Hon. Dennis J. Adkins
Notes
[1] We find it questionable whether Wayne properly preserved an objection to A.J.’s testimony about being attracted to females.
During a morning recess before opening statements, defense counsel cited the rape-shield statute and moved to prevent the State from
introducing evidence of A.J.’s “sexual activity” or “reputation as to sexual activity.” (Trial Tr. Vol. I at 144-145). Thе State responded that it
intended to present evidence of her sexual orientation, not any sexual activity. The trial court overruled defense counsel’s motion and stated
that it would allow the testimony. (Id.). When A.J. later testified about being attracted to females, Wayne did not object. (Id. at 158, 173). A
motion made before opening statements regarding the admissibility of evidence is a motion in limine. State v. Wilson, 2d Dist. Montgomery
No. 24577,
[2] In light of this determination, we need not address the State’s argument that the rape-shield statute was not violated because A.J. herself presented the challenged testimony about her sexual orientation.