Burton v. Dutiel, Case No. 14-CA-00024
| Decision Date | 02 October 2015 |
| Docket Number | Case No. 14-CA-00025,Case No. 14-CA-00024 |
| Citation | 2015 Ohio 4134 |
| Parties | KAYLA J. BURTON Plaintiff-Appellee v. DONALD DUTIEL Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.
For Plaintiff-Appellee
BARTON KEYES
REX ELLIOTT
2175 Riverside Drive
Columbus, OH 43221
For Defendant-Appellant
ELIZABETH GABA
1231 East Broad Street
Columbus, OH 43205
{¶1} Appellant appeals the judgment by the Perry County Court of Common Pleas.
{¶2} On October 6, 2010, appellee Kayla Burton filed a complaint against appellant Donald Dutiel for assault, battery, intentional infliction of emotional distress, and punitive damages. Burton alleged in her complaint that Dutiel raped her on July 8, 2010.
{¶3} In September of 2012, Dutiel filed a motion to change venue due to pre-trial publicity. In a judgment entry, the trial court reserved ruling on the motion until such time as the jury panel was subjected to the voir dire process. Dutiel also filed a motion to convey him from prison to attend the trial. The trial court denied the motion. The trial court granted Dutiel's motion in limine to preclude Burton from introducing evidence of his no contest plea and resulting conviction for rape.
{¶4} Prior to trial, Burton filed a motion in limine to preclude Dutiel from introducing evidence as to her alleged sexual history and evidence or arguments related to Dutiel's theory that Burton's mother "orchestrated" the sexual assault. The trial court ruled that "irrelevant evidence, hearsay and evidence that will cause unfair prejudice, confusion of the issues or of misleading the jury will not be admitted" and granted Burton's motion "to the extent the evidence does any of this." The trial court further stated that testimony would be permitted based upon the rules of evidence. Finally, that evidence of Burton's alleged sexual activity or history were not admissible due to the danger of unfair prejudice, confusion of the issues, and misleading of the jury.
{¶5} The trial commenced on March 25, 2013. Burton testified that Dutiel was a family friend who she met in 2008 through her mother. Prior to July 8, 2010, she would say "hi" to him, but she never went anywhere alone with him and he never led her to believe he was interested in her. Burton stated that on July 8, 2010, Dutiel called her and asked if she would take him to look at a property he wanted to buy because his trucks were broken down. Burton agreed, and picked him up at his farm. Dutiel told her to take him to the house he owned on Maple Heights Avenue in New Lexington so he could get something.
{¶6} When Burton went into the house with Dutiel, he locked the door behind them and said he wanted to show her something in the kitchen. Burton testified that Dutiel began kissing her and though she told him "no" and "stop," he would not listen. Burton stated that Dutiel forced her onto the bed and, though she tried to push him, he was too strong, and took her clothes off and took his off. Burton testified that she kept telling Dutiel to stop, but he forced his penis inside her vagina. Burton did not scream or try to call for help because she was in shock and was afraid for her life. Burton stated that Dutiel subsequently asked her to take him to another property, which she did because she was scared and wanted to get away from him. Burton testified that when she dropped Dutiel off, he told her he would look her up so he could do it again.
{¶7} Burton then drove to Lancaster to meet her cousin and called her friend Shawn, who told her to go to the home of his uncle, Pastor Willie Syfert ("Syfert"). Burton's cousin took her to the pastor's house. Burton did not want to go to the police because she did not want people to find out what happened and did not want to go the hospital because she "felt like a lowlife." However, Burton's cousin and Syfert tookBurton to Fairfield Medical Center where the staff conducted a rape kit and tests, including blood work and a pelvic exam. The tests were embarrassing and painful to Burton. Burton made a police report the next day with Rick Cline ("Cline") of the New Lexington Police Department. Burton testified that, after the incident, Dutiel would drive past her work, which scared her. She obtained a protection order as a result.
{¶8} Burton testified that Exhibit 17 contains copies of her medical records since July 8, 2010 and the statements that she made in those records were for the purposes of treatment or diagnosis. Burton stated that some of the medical problems and issues she has experienced as a result of what Dutiel did to her include a sharp pain in her left side, ovary problems, and the need to obtain counseling. Burton testified that Exhibit 18 is a fair and accurate copy of her medical bills since July 8, 2010. When asked how the event on July 8, 2010 has impacted her life, Burton stated that when it happened, she was afraid to go out of the house. She is still afraid that he's "going to get me again." She thinks about what Dutiel did to her approximately two to three times per week and, when she goes back to New Lexington, she feels frightened and paranoid. Burton testified that she moved to Columbus after the rape to "start a new life" and is currently working as a home health aide.
{¶9} On cross-examination, Burton stated that, in the Maple Heights home, the bedroom is very close to the front door and she could see the front door of the house from the bedroom because there was no door from the bedroom to the front door. Burton does not know how Dutiel got her phone number. Burton confirmed that neither in the statement she gave police nor in the statement she gave to the nurse at Fairfield Medical Center did she say that she was afraid for her life. When Dutiel took off hisclothes, Burton did not see a gun or a knife. When asked why she did not just leave, Burton testified that she was scared and in shock.
{¶10} Burton confirmed that she had bad pains in her left side and ovaries, but did not have this pain when she initially went to Fairfield Medical Center the night of July 8, 2010. Burton stated that she went to Fairfield Medical Center on August 12, 2010 after a fight with her mom and because someone stole her Celexa medication. Burton told them at that time she had been raped in July. Burton returned to Fairfield Medical on August 18, 2010 and indicated to them that day that somebody had raped her in July. Burton's mother was with her at Fairfield Medical on August 12th and August 18th. On February 27, 2011, Burton went to the emergency room at Grant Hospital due to pain in her left side and went to the emergency room on April 17, 2011 due to abdominal pain. When counsel for Dutiel attempted to ask Burton if she was flirting with Dutiel in May of 2010, the trial court excluded the evidence, finding the probative value is outweighed by any prejudice.
{¶11} On re-direct, Burton testified that she did not suffer any of these medical problems prior to July 8, 2010. Burton did not run out of the house because she was scared and in shock. Burton stated that she did not consent to having intercourse with Dutiel on July 8, 2010. On re-cross-examination, Burton testified that when Dutiel was kissing her in the kitchen, he had her pinned up against the cabinet after grabbing her by the wrist and forced her onto the bed. However, her arm was not injured.
{¶12} Sarah Smith ("Smith"), a forensic scientist in the DNA section of the Ohio Bureau of Criminal Investigation ("BCI"), testified about the rape kit analysis performed on samples taken from Burton's body. Smith stated that when a piece of evidencecomes into the office, it is placed in a secure vault by the evidence receiving staff. Once Smith took control of the case, she went to the vault and scanned the items into her custody to begin her analysis. Semen was identified on vaginal samples and skin swabs from Burton's skin indicated the possible presence of saliva, so they were sent for more sophisticated testing.
{¶13} Smith testified that Exhibit 4 was a document prepared as part of the matters observed by BCI employees under their job duties and prepared and kept in the regular course of BCI's activities. Smith stated that the information contained in Exhibit 4 is part of the ordinary function as a public office and it is generated near in time to when the materials are received. Smith testified that Exhibit 4 is a document prepared in the ordinary course of activities at BCI, prepared as part of matters performed by BCI, prepared and kept in the regular course of BCI's business, and is a list of findings following her analysis of the rape kit.
{¶14} Terri Higgins ("Higgins"), a registered nurse at Fairfield Medical Center, has specialized training for sexual assault cases and examined Burton at the hospital on July 8, 2010. Higgins detailed the sexual assault exam she performed on Burton. Higgins observed reddened and painful tissue in Burton's vaginal area, but does not know what it was from. Higgins testified that Exhibit 15 is the handwritten chart that she did as a record of her exam of Burton and Higgins herself prepared the documents. Further, that the information contained in the exhibit is the type of information important for purposes of medical treatment or diagnosis for sexual assault patients and includes past and present medical history, which is significant. Higgins stated that Burton was alert and oriented and physically in good condition. Higgins testified that Burton'scondition was not unusual for a sexual assault patient because there are a wide range of responses to sexual assault. Higgins stated that once she collected the swabs and samples according to protocol...
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