State v. Barnett
| Citation | 2018 Ohio 4133 |
| Decision Date | 12 October 2018 |
| Docket Number | Appellate Case No. 27660 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. DARRELL BARNETT Defendant-Appellant |
| Court | United States Court of Appeals (Ohio) |
2018 Ohio 4133
STATE OF OHIO Plaintiff-Appellee
v.
DARRELL BARNETT Defendant-Appellant
Appellate Case No. 27660
COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
October 12, 2018
Trial Court Case No. 2016-CR-1959
(Criminal Appeal from Common Pleas Court)
OPINION
MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
CHRISTOPHER A. DEAL, Atty. Reg. No. 0078510, 2541 Shiloh Springs Road, Dayton, Ohio 45426 Attorney for Defendant-Appellant
WELBAUM, P.J.
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{¶ 1} Defendant-appellant, Darrell Barnett, appeals from his conviction and sentence in the Montgomery County Court of Common Pleas after a jury found him guilty of two counts of sexual battery against his 15-year-old daughter. For the reasons outlined below, the judgment of the trial court will be affirmed.
{¶ 2} On August 18, 2016, the Montgomery County Grand Jury returned an indictment charging Barnett with two counts of sexual battery in violation of R.C. 2907.03(A)(5). The charges stemmed from allegations that Barnett sexually abused his 15-year-old daughter, AG, on two separate occasions in March 2016. Barnett pled not guilty to the charges and the matter proceeded to a jury trial.
{¶ 3} As it relates to this appeal, it is undisputed that Barnett and AG's mother ("Mother") were legally separated at the time of the alleged abuse. It is also undisputed that Barnett and Mother have five children together, four daughters and one son. Their daughters are HR and HL, who are both 18 years old, AG, who has since turned 16 years old, and E, who is 11 years old. Their only son, D, is 10 years old. Their oldest daughter, HR, is married and has one child.
{¶ 4} In January 2016, Mother and the five children moved out of Barnett's residence, which is located in the city of Moraine, Montgomery County, Ohio. Mother, HR, HL, D, and HR's husband and child moved in with Mother's father ("Grandfather"). Due to limited space in Grandfather's home, AG and E went to live with Mother's sister ("Aunt").
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{¶ 5} After moving out of the residence, AG and her siblings began biweekly visits with Barnett. During these visits, four of the five children, HL, AG, E, and D, would spend Thursday through Sunday with Barnett at Barnett's residence. At trial, both AG and Mother testified that there was only one bed and two loveseat couches at Barnett's residence. AG also testified that when she and her siblings visited Barnett's residence, she and her two sisters, HL and E, would typically sleep on the floor of the "pink room" located upstairs. AG's brother, D, would sleep on one of the two couches located in the first-floor living room. Barnett would sleep in the first-floor bedroom where the only bed in the residence was located.
{¶ 6} The record indicates that AG and her siblings visited Barnett during the second week of March 2016. AG testified that, during this visit, she attempted to sleep on the second couch that was located in the first-floor living room because she had arthritis in her back and had difficulty sleeping on the floor. Both AG and Mother testified that AG had a chronic back problem for which she took medication. AG testified that at all relevant times she was taking Flexeril for her back pain. AG testified that she only took the Flexeril at night before going to bed because it made her very drowsy. Mother confirmed at trial that the Flexeril made AG drowsy.
{¶ 7} After moving downstairs to the first-floor living room, AG testified that her younger sister, E, asked to sleep on the couch. AG testified that she agreed to let E sleep on the couch and that Barnett thereafter invited AG to sleep with him in his bed. After accepting Barnett's invitation, AG testified that she recalled walking into Barnett's room, but did not specifically remember falling asleep. Although she did not remember falling asleep, AG testified that she woke up briefly in the middle of the night to Barnett
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having his hand under her tank top and bra. AG testified that Barnett made skin to skin contact with her breast. Due to the Flexeril, AG testified that she struggled to stay awake and fell back asleep.
{¶ 8} Continuing, AG testified that, when she woke up a second time, her clothes had been removed and Barnett was naked and on top of her. AG claimed that Barnett was moving up and down with his whole body touching hers. During this time, AG testified that Barnett's penis was inside her vagina and that it was painful. AG testified that she knew what was happening, but could not do anything to stop Barnett from having sexual intercourse with her because she felt like she was in a "sleep coma." Trans. Vol. I (May 30, 2017), p. 152.
{¶ 9} AG testified that when Barnett eventually stopped, she was able to get out of bed and locate her clothes on the floor. AG then ran into the bathroom, locked the door, and cried. AG testified that she was terrified and did not know what to think. After crying in the bathroom for some time, she returned to the bedroom and went back to sleep.
{¶ 10} AG testified that she did not immediately tell anyone about what had happened to her because she was afraid of Barnett, who she claimed was very violent. AG explained that Barnett liked to yell and scream and that he had threatened to hurt her and her siblings. AG also claimed that Barnett had told her and her siblings that he could easily kill their mother. AG testified that she believed Barnett's threats because he had knives and guns in the house that he would use when making his threats.
{¶ 11} After the incident in Barnett's bedroom, AG told Mother, Aunt, and Grandfather that she did not want to go back to Barnett's house to visit Barnett. Unfortunately, Mother told AG that she had to visit Barnett again. When told this news,
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AG claimed that she was terrified and that she cried and threw a fit in opposition.
{¶ 12} At trial, Aunt confirmed that AG was upset upon learning she had to visit Barnett again. Specifically, Aunt testified that AG was "hysterical" and that AG had "curled up in a ball, screaming and crying and shaking." Trans. Vol. II (June 1, 2017), p. 400-401. Aunt further testified that she had never seen AG behave like that before and that it was different than her usual general dislike for visiting Barnett. According to Aunt, during the timeframe of the abuse, AG's personality and behavior changed from bubbly and happy to withdrawn and depressed.
{¶ 13} Although she did not want to return to Barnett's residence, AG testified that she and her siblings went back to Barnett's residence for their biweekly visit on March 24, 2016. AG testified that a similar scenario occurred between her and Barnett during that visit. Specifically, AG testified that she attempted to sleep on the couch, her younger sister E wanted the couch, and that Barnett invited her to sleep with him in his bed. When asked why she again agreed to sleep with Barnett in his bed considering what had happened previously, AG testified that she slept there because her younger sister E offered to sleep with Barnett and AG wanted to protect E from Barnett.
{¶ 14} During this second incident, AG, who had taken her Flexeril before going to bed, testified that she once again woke up in the middle of the night to Barnett having his hand under her shirt and on her breast. AG testified that she later woke up to Barnett's naked body moving up and down on top of her. AG testified that her clothes were once again removed, Barnett's penis was inside her vagina, and it was painful. AG testified that she was more awake during this second incident and that she actively tried to push Barnett off her, but was unable to do so. AG also claimed that Barnett tried to kiss her,
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but that she moved her head away.
{¶ 15} When Barnett stopped, AG testified that she once again ran into the bathroom. Thereafter, AG testified that her brother, D, came into the bedroom to sleep on the floor. AG claimed she then got back into bed with Barnett because she felt safer with D on the floor, as AG believed Barnett would not do anything to her while D was present.
{¶ 16} Shortly thereafter, while D was sleeping, AG testified that she told Barnett she was going to tell Mother what had happened. In response, AG claimed that Barnett said Mother would not believe her, that she should not tell anyone because he would go to prison, and that he would kill himself before going to prison. AG testified that she was terrified Mother would not believe her.
{¶ 17} AG testified that, the day after this second incident, she went to lunch with Mother and Barnett. During this time, AG testified that Mother and Barnett spoke with her about some inappropriate sexual text messages that they had recently discovered on her cell phone. When asked how she discovered the text messages, Mother testified that AG had left her cell phone at church the previous day and that the pastor's wife had given the cell phone to Aunt. The record indicates that Aunt looked through AG's cell phone and found that AG had been exchanging sexually explicit text messages with a 29-year-old male. Upon discovering the text messages, Aunt showed the messages to Mother, who then discussed the matter with Barnett. Mother testified that she and Barnett decided to report the matter to police and to confront AG about the messages over lunch.
{¶ 18} At lunch, Mother and Barnett told AG that they were disappointed in her and
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that the police had both her cell phones.1 After being confronted by Mother and Barnett about the text messages, AG informed Mother that she had something important to tell her. AG and Mother then drove to AG's grandmother's farm to feed their puppies. During this trip, Mother asked AG what she wanted to tell her. Mother...
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