State Of Ohio v. Ward
| Decision Date | 28 December 2010 |
| Docket Number | Case No. 2010-CA-0026 |
| Citation | 2010 Ohio 6462 |
| Parties | STATE OF OHIO Plaintiff-Appellee, v. JASON WARD Defendant-Appellant. |
| Court | Ohio Court of Appeals |
For Plaintiff-Appellee KIRSTEN L. PSCHOLKA-GARTNER ASSIST. PROSECUTOR.
For Defendant-Appellant BYRON D. CORLEY.
{¶1} Defendant-appellant, Jason Ward, appeals from his conviction and sentence in the Richland County Court of Common Pleas Jury for one count of rape in violation of R.C. 2907.02(A)(1)(c)[impaired victim], one count of rape in violation of R.C. 2907.02(A)(2)[force], and one count of sexual battery in violation of R.C. 2907.03(A)(2). The plaintiff appellee is the State of Ohio.
{¶2} In May of 2007, C.W., a mildly mentally retarded fifteen-year-old girl, lived in Shelby, Ohio with her adoptive mother, Jewell Ward, her sister, Heather Ward, her foster-sister, Brady Ward, and her adoptive brother appellant.
{¶3} On May 6, 2007 at around 11:00 p.m., C.W. was playing the Dukes of Hazzard video game on the Play Station in the living room. She was having trouble getting past a particular level of the game, so she asked appellant to help her. Appellant sat down next to her on the floor and began playing the game. After a short time, he began inserting his fingers into C.W.'s vagina and used his tongue to lick her breast. Appellant then laid C.W. back on the floor, removed her pajama pants and underwear, and engaged in vaginal and anal intercourse with her.
{¶4} C.W. told appellant to stop and moaned in pain; however, appellant continued. She did not physically resist because she was afraid appellant would hurt her worse. C.W. also did not yell out to her adoptive mother, Jewell, who was sleeping in the bedroom next to the living room. At trial, she explained that she did not think Jewell would believe her or do anything about it. This claim was backed up by hersister Heather, who testified that over the years, appellant had physically assaulted the girls in the household, and Jewell had not done anything about it.
{¶5} After the incident, C.W. went to the bathroom and then went to sleep in the bedroom with Jewell. The next morning, she begged Jewell to let her ride her bike to school by herself instead of having Jewell drop her off as she usually did. Along the way, her favorite teacher, Mr. Solis, saw her, stopped, and picked her up. During the ride to school, C.W. told Mr. Solis that appellant had raped her; however, it is unknown if he reported that disclosure to school officials.
{¶6} Later that morning, teacher's aide Barbara Gonzales saw C.W. using the computer in the resource room of the high school. When she went over to make sure that C.W. was accessing educational materials, Ms. Gonzales saw that C.W. had typed a note, which stated:
{¶7} [State's Exhibit 11].
{¶8} After seeing this note, Ms. Gonzales became concerned. She printed the note off the computer and took C.W. down to guidance counselor Cynthia Roby's office. From there, the Shelby police were contacted. Officer Paul Zehner responded to the school and took a statement from C.W. about the sexual assault.
{¶9} After the interview with Officer Zehner, C.W. went to Med Central Hospital for a sexual assault examination. That examination revealed an abrasion extending from the area between her vagina and anus to the inside of her labia majora andminora. This injury was consistent with penetration. Forensic testing of swabs taken during the exam and of the clothing C.W. was wearing at the time of the assault revealed the presence of amylase, a component in saliva, on C.W.'s left breast and in a cutting from her underwear. The DNA profile developed from that biological fluid was consistent with the standard submitted by appellant.
{¶10} As a result of the investigation into C.W.'s sexual assault allegations, appellant was indicted by the Richland County Grand Jury for one count of rape in violation of R.C. 2907.02(A)(1)(c), one count of rape in violation of R.C. 2907.02(A)(2), and one count of sexual battery in violation of R.C. 2907.03(A)(2).
{¶11} Prior to trial appellant filed a motion pursuant Evid.R. 601 requesting that the trial court conduct a voir dire examination of C.W. to determine her competency to testify. The court conducted the examination before C.W. took the stand at appellant's jury trial. At the conclusion of that evaluation, the trial court found that she was competent to testify and she did testify before the jury during appellant's trial. C.W. at the time of trial was eighteen years old with an IQ of 58 and functioning in the age range between five years eleven months to eleven years of age.
{¶12} The state called twelve other witnesses during appellant's two-day trial. Appellant chose not to take the stand in his own defense; however, the defense did call his mother, Jewell Ward, to testify on his behalf.
{¶13} When the trial concluded on January 29, 2010, the jury found appellant guilty of all three counts in the indictment. At his sentencing hearing on February 1, 2010, the trial court sentenced appellant to nine years on Count I, nine years on Count II, and four years on Count III. Those sentences were mandatory sentences, which thecourt ordered to run concurrent. The trial court also imposed five years of mandatory post-release control, and classified appellant as a Tier III sex offender.
{¶14} Appellant has timely appealed, raising the following two assignments of error:
{¶15} "I. THE TRIAL COURT COMMITTED PLAIN ERROR BY DETERMINING THAT AN EIGHTEEN YEAR OLD WITNESS VICTIM WHO HAD AN IQ OF 58 AND FUNCTIONING RANGE BETWEEN FIVE YEARS ELEVEN MONTHS TO ELEVEN YEARS WAS COMPETENT TO TESTIFY.
{¶16}
{¶17} In his first assignment of error, appellant contends that the trial court committed plain error in finding C.W. competent to testify at trial because the court failed to address C.W.'s ability to observe, recall, and communicate accurate impressions or observations of pertinent facts. Specifically, appellant claims that the trial court failed to inquire about C.W.'s ability to recall events from the relevant time period of the offense. We disagree.
{¶18} Appellant concedes we must review this assignment of error under the plain error standard. As the United States Supreme Court recently observed in Puckett v. United States (2009), 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266, (Citation omitted).
{¶19} "[A]n appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Marcus (May 24, 2010), 560 U.S. _, 130 S.Ct. 2159, 2010 WL 2025203 at 4. (Internal quotation marks and citations omitted).
{¶20} "We have previously held that if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other constitutional[l] errors that may have occurred are subject to harmless-error analysis. State v. Hill (2001), 92 Ohio St.3d 191, 197, 749 N.E.2d 274, quoting Rose v. Clark (1986), 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460. Moreover, as we stated in State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, [c]onsistent with the presumption that errors are not structural, the United States Supreme Court ha[s] found an error to be structural, and thus subject to automatic reversal, only in a very limited class of cases. Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31(1984) (); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction). Wamsley, supra 117 Ohio St.3d at 391-392, 884 N.E.2d at 48-49, 2008-Ohio-1195 at ¶ 16. [Citations and internal quotation marks omitted].
{¶21} ...
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