Romero v. Warden

• Decision Date: 23 January 2017
• Docket Number: Case No. 2:16-cv-00600
• Parties: FRANCISCO ROMERO, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

FRANCISCO ROMERO, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

Case No. 2:16-cv-00600

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

January 23, 2017

Judge James L. Graham

Magistrate Judge Kimberly A. Jolson

ORDER AND REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Motion to Dismiss, Petitioner's Response in Opposition, Respondent's Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that Respondent's Motion to Dismiss (Doc. 8) be GRANTED, and that this action be DISMISSED. In addition, Petitioner's motion to strike the Motion to Dismiss (Doc. 9) is DENIED.

FACTS AND PROCEDURAL HISTORY

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:

Appellant was indicted on three counts of gross sexual imposition, in violation of R.C. 2907.05(A)(4), arising from his alleged sexual conduct with an 11-year-old girl, K.S. The crimes were charged as third-degree felonies because they involved a victim less than 13 years of age. R.C. 2907.05(C)(2).

Following a trial, a jury returned guilty verdicts on Counts 1 and 3 and a not guilty verdict on Count 2. Thereafter, the trial court issued a judgment entry consistent with the jury's verdicts, classified appellant a Tier II Sex Offender, and sentenced him to 36 months imprisonment and 5 years of post-release control.

Appellant appeals the judgment, asserting the following three assignments of error:

1. The trial court erred when it permitted multiple witnesses to recount the victim's out-of-court statements about the event over hearsay objection from defense counsel.

2. The trial court erred when it allowed the State to elicit victim-impact evidence during the trial.

3. The cumulative impact of the trial court's errors warrants reversal.

Evidence presented by the parties pertinent to the issues raised in this appeal establishes the following. K.S., the 11-year-old daughter of D.S., was best friends with A.R., the nine-year-old daughter of M.R. and appellant, and the two girls often had sleepovers at each other's houses.

Although M.R. and appellant were divorced, appellant often visited A.R. at M.R.'s house. K.S. had a good relationship with appellant and M.R., and thought of them as her second parents.

On Saturday, April 13, 2013, K.S. spent the night with A.R. at M.R.'s house. Because M.R. had to work that evening, she arranged for a friend to babysit the girls. K.S. testified that she and A.R. were playing with their dolls while they took a bath together. Appellant knocked on the bathroom door and told the girls it was time to get out of the bathtub. K.S. wrapped a towel around her body and walked across the hall to A.R.'s room to get dressed. A.R. remained in the bathroom to drain the bathtub and dry off the dolls. Appellant followed K.S. into A.R.'s bedroom and gave K.S. "a friendly side hug." (Tr. Vol. II, 134.) As he did so, he squeezed her right breast. Appellant then pinched her on the bottom over the towel, lifted the towel and slapped her on the bottom, pulled out his cell phone, motioned for her to take off her towel, and then said, "[d]on't worry. I won't tell nobody." (Tr. Vol. II, 135.) K.S. covered her face with her sleepover bag and saw a cell phone camera flash. Appellant then left A.R.'s room, stopped briefly in the bathroom to say goodbye to A.R., and left the house. Moments later, A.R. entered the bedroom. K.S. immediately told A.R. what appellant had done to her. Shortly thereafter, K.S. received several text messages from appellant making fun of her boyfriend. K.S. did not tell the babysitter what had happened with appellant because she did not know her very well. Although she knew shewould have to tell her parents about the incident the next day, she tried to forget about it and enjoy the rest of the sleepover.

K.S. went home about 9:00 a.m. the next morning. At approximately 5:00 p.m. that evening, she told D.S. she needed to tell her something about appellant. According to D.S., K.S. related that she and A.R. were in the bathroom taking a bath around 9:00 p.m. the preceding night. K.S. did not take her pajamas into the bathroom with her; instead, she planned to put her pajamas on in A.R.'s bedroom. K.S. got out of the bathtub, wrapped herself *503 in a towel, and opened the bathroom door. Appellant followed her into A.R.'s bedroom and, when he reached toward her to give her a hug, he grabbed her right breast, patted or pinched her bottom over the towel, and then flipped the towel up and slapped her on the bare bottom. Appellant then motioned for K.S. to drop her towel, pulled out his cell phone, and told her "[d]on't worry. I won't tell anybody." (Tr. Vol. II, 69.)

After K.S. finished her story, D.S. immediately called the Reynoldsburg Police Department. At police urging, she drove K.S. to the police station, where Officer Craig Brafford interviewed K.S.

Officer Brafford testified that K.S. averred she and A.R. were playing with the dolls in the bathtub at A.R.'s house the preceding night. At some point, appellant knocked on the bathroom door and told the girls to hurry up and get out of the bathtub. K.S. wrapped herself in a towel and ran across the hall to A.R.'s bedroom to put on her pajamas. A.R. remained in the bathroom to dry off the dolls. A short time later, while K.S. was still in A.R.'s bedroom, appellant entered the bedroom, approached K.S. from behind, and gave her a hug. As he hugged K.S., appellant pinched her right breast, patted her on the buttocks, and then patted her on the bare buttocks. He then held up his cell phone as if to take a picture with it and motioned for K.S. to drop her towel. K.S. did not drop her towel, and held a straw beach bag in front of her face. K.S. then saw a flash she assumed to have come from appellant's cell phone. Appellant left the bedroom as A.R. entered. K.S. immediately told A.R. what appellant had done.

Detective Michael Binder also interviewed K.S. According to Detective Binder, K.S. asserted she was at A.R.'s house for a sleepover the preceding night. M.R. had to leave the house to go to work, so another woman came to babysit the girls. K.S. and A.R. played with their dolls in the bathtub for about 45 minutes. Appellant knocked on the bathroom door and told the girls it wastime to get out of the bathtub. A.R. stayed in the bathroom to dry off her dolls. K.S. wrapped herself in a towel and walked across the hall to A.R.'s bedroom to get dressed. Appellant followed her into A.R.'s room, squeezed her breast and pinched her buttocks over the towel, and then lifted the towel and slapped her bare buttocks. Appellant then motioned for K.S. to drop her towel, held up a cell phone as though he were going to take a picture of her, and said he "won't tell nobody." (Tr. Vol. III, 304.) K.S. thought appellant took a picture of her wearing the towel. Appellant eventually left the house, but later sent K.S. several text messages making fun of her boyfriend.

Officer Brafford subsequently obtained a description of appellant's vehicle and eventually stopped him for committing a traffic violation. At Officer Brafford's request, appellant removed his cell phone and other miscellaneous items from his pockets. Detective Binder arrived at the scene, retrieved appellant's cell phone from Officer Brafford, and informed appellant that he was the subject of certain allegations regarding his conduct the night before. Appellant agreed to go to the police station for an interview with Detective Binder.

During that interview, which was video recorded and played for the jury, appellant admitted he was at M.R.'s house the night before and told A.R. and K.S. to get out of the bathtub. According to appellant, both girls exited the bathroom at the same time wearing towels and then went into A.R.'s room across the hall. Appellant initially stated that nothing happened between him and K.S.; the two did *504 not even speak to one another. However, after further questioning, appellant stated that he touched K.S. on the small of her back as she entered A.R.'s bedroom.

When Detective Binder told appellant he had evidence that appellant had sexual contact with K.S., appellant adamantly denied doing so. Appellant admitted that he pretended to take a picture of K.S. while she was wearing the towel, but stated that he did not actually take a picture. Appellant also admitted he later sent text messages to K.S. about her boyfriend. Near the end of the interview, appellant denied touching K.S. on the buttocks over her towel, but stated that if he had done so, it was accidental and he was sorry about it. Appellant insisted he did not hug K.S. or touch her breast or bare buttocks. Following the interview, appellant agreed to return to the police station the next day for an interview with Detective Tim Doersam.

In that interview, which was also video recorded and played for the jury, appellant initially stated he touched K.S. on the small of her back as he was guiding her and A.R. toward A.R.'s bedroom after the girls exited the bathroom. He denied following K.S. into A.R.'s bedroom, giving her a hug, or touching her on the buttocks, either over or under the towel. He admitted he pretended to take a picture of K.S. while she was wearing the towel, but stated he never intended to take a picture and did not do so. Later during the interview, appellant stated that he may have accidentally tapped K.S.'s bare buttocks when he steered K.S. and A.R. into A.R.'s bedroom. He also conceded he walked into A.R.'s room, gave K.S. a side hug, and probably touched K.S.'s breast accidentally while doing so. He further stated he apologized to K.S. for touching her breast. Appellant consistently denied motioning to K.S. to drop her towel, telling her not to worry

...