75 N.E.3d 922 (Ohio App. 8 Dist. 2016), 103957, State v. Jackson

Docket Nº:103957
Citation:75 N.E.3d 922, 2016-Ohio-8144
Opinion Judge:EILEEN A. GALLAGHER, P.J.:
Attorney:For Appellant: Jonathan N. Garver, Cleveland, Ohio. For Appellee: Timothy J. McGinty, Cuyahoga County Prosecutor, Sherrie S. Royster, Assistant Prosecuting Attorney, Cleveland, Ohio.
Case Date:December 15, 2016
Court:Court of Appeals of Ohio

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75 N.E.3d 922 (Ohio App. 8 Dist. 2016)





No. 103957

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 15, 2016

Criminal Appeal from the Cuyahoga County Court of Common Pleas. Case No. CR-15-598188-A.

For Appellant: Jonathan N. Garver, Cleveland, Ohio.

For Appellee: Timothy J. McGinty, Cuyahoga County Prosecutor, Sherrie S. Royster, Assistant Prosecuting Attorney, Cleveland, Ohio.

BEFORE: E.A. Gallagher, P.J., Boyle, J., and S. Gallagher, J. MARY J. BOYLE, J., CONCURS. SEAN C. GALLAGHER, J., DISSENTS.

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[¶1] Defendant-appellant Demetrius Jackson appeals his convictions for rape, gross sexual imposition and kidnapping in the Cuyahoga County Court of Common Pleas. For the following reasons, we reverse and remand.

Factual and Procedural Background

[¶2] Appellant was charged by a Cuyahoga County Grand Jury with three counts of rape, gross sexual imposition, importuning with a prior conviction for a sexually or child victim oriented offense, felonious assault and kidnapping with a sexual motivation specification. Each of these crimes were alleged to have been committed against a 14-year old female (" C.H." ).

[¶3] The case proceeded to a bench trial where C.H. testified that, on August 5, 2015, she went to an older sister's home in Cleveland, Ohio and was interacting with her young relatives while two of her sisters were on the porch drinking with the appellant. C.H. testified that she did not know the appellant and that both of her sisters were intoxicated. Late that night the occupant of the home, C.H.'s sister N.J.,1 told C.H. to go upstairs and lay down with N.J.'s two children, ages 7 and 1. C.H. had fallen asleep in a bedroom with the two children and was awakened by the appellant who told her that her sister, S.H., had told him to come lay with her. C.H. rebuffed his advances and told him to leave the room which he did and after which he went downstairs but returned and repeated that her sister told him to go upstairs and lay with her. C.H. herself went downstairs, as did the appellant, and found both of her sisters to be asleep on a couch. At that point the appellant laid himself on the living room floor and C.H. returned upstairs to a bedroom.

[¶4] C.H. testified that appellant returned to the upstairs bedroom and asked her to allow him to perform oral sex on her. When she refused, appellant stated " I'll give you $200 a week if you don't say anything." Appellant then " ripped" C.H.'s underwear off of her, proceeded to perform oral sex on her and when she resisted, he choked her and said " let me just do this." The appellant then inserted his fingers into her vagina and later, his penis.

[¶5] At some point appellant stopped his assault which gave C.H. an opportunity to grab her cellular telephone from a windowsill and run, without shoes or underwear, to a family member's home approximately eight houses away from where Cleveland police were called. C.H. was transported to University Hospitals by EMS where she was examined, treated and released.

[¶6] N.J., the occupant of the home where these events transpired, testified that on the night in question her sister

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S.H. brought appellant to the house after she went to the store to purchase alcohol. N.J. testified that she had fallen asleep and was awakened, on the couch, by her brother-in-law, K.F., who informed her that C.H. was at his home down the street and that she had been raped. N.J. went to the house of K.F. where she found the victim " hysterically crying * * * she was screaming 'he raped me, he raped me * * *.'"

[¶7] Kathleen Hackett, the sexual assault nurse examiner who interacted and examined C.H. at U.H. Rainbow Babies and Childrens Hospital read the victim's own words from the triage notes that echoed C.H.'s testimony but for the fact that C.H. did not report to her any digital penetration and the nurse noted a mark on C.H.'s neck.

[¶8] Laura Evans, a DNA analyst at the Cuyahoga County Medical Examiner's Office testified that testing of the victim's vaginal swabs revealed the presence of seminal material but no DNA profile foreign to the victim was found. The DNA analyst testified that sometimes the victim's DNA can mask the another person's DNA. She testified that Jackson could not be excluded as a possible contributor to the DNA profile from a dried stain from the victim's left ear. She further testified that testing done of the penile swabs taken from Jackson could not exclude C.H. as a possible contributor.

[¶9] Holly Mack, an employee of the Cuyahoga County Division of Children and Family Services testified that she is the child advocate in the Cuyahoga County jail and " works" directly with incarcerated parents as well as alleged perpetrators that are in the jail.

[¶10] Over objection, Mack testified her protocol is that she identifies herself, advises them they have been named as a perpetrator and what the allegations are that have been levied against them and " I also let them know that anything they tell me can be subpoenaed by the courts."

[¶11] Appellant testified on his own behalf. He testified, however, only because the court admitted the testimony concerning what was allegedly said to the child advocate, over objection. Appellant claimed that the sexual activity with the victim was consensual. He maintained that he had only a few swigs of alcohol and smoked two blunts of marijuana on the night in question. He testified that everyone, including the victim, was drinking and that he thought the victim was at least 18 years old. He testified that the victim started kissing him, that they performed oral sex on each other and that the victim asked him to pay her for same. He denied choking the victim or in penetrating her in any fashion. He also testified to the limited mobility of his right arm.

[¶12] At the close of the state's case the trial court dismissed the importuning and felonious assault charges. The trial court found appellant guilty of two counts of rape, gross sexual imposition and kidnapping with a sexual motivation specification. The trial court found appellant not guilty of the third count of rape (cunnilingus).

[¶13] The trial court found the kidnapping count to be an allied offense to the rape and gross sexual imposition counts and merged the kidnapping count with those offenses. The state elected to proceed to sentencing on the two rape counts and the kidnapping count. The trial court imposed prison terms of 11 years on each of the three counts and ordered the sentences to run concurrently.

Law and Analysis

I. Appellant's Statements Made to the Child Advocate

[¶14] In his first assignment of error, appellant argues that his Fifth and Sixth Amendment

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rights were violated by the introduction of the child advocate's testimony regarding her questioning of appellant after his arraignment, outside the presence of counsel and without providing him with Miranda warnings. Appellant's objection to the child advocate's testimony was overruled by the trial court.

[¶15] Pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), statements stemming from custodial interrogation of the defendant must be suppressed unless the defendant had been informed of his Fifth and Sixth Amendment rights before being questioned. Id. Miranda defines " custodial interrogations" as any " questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444.

[¶16] The state argues that the child advocate did not quality as an agent of law enforcement and that a custodial interrogation did not occur. We disagree.

II. The Child Advocate functioned as an Agent of Law Enforcement

[¶17] Miranda requirements do not apply to admissions made to persons who are not officers of the law or their agents. State v. Clark, 8th Dist. Cuyahoga No. 44015, (Apr. 29, 1982), citing State v. Watson, 28 Ohio St.2d 15, 275 N.E.2d 153 (1971). In State v. Jones, 8th Dist. Cuyahoga No. 83481, 2004-Ohio-5205, this court acknowledged that " in certain circumstances a social worker may be required to provide Miranda warnings, i.e., when acting as an agent of the police." Id. at ¶...

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