State v. Basham, 2007 Ohio 6995 (Ohio App. 12/26/2007), No. CT2007-0010.

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtGwin
Citation2007 Ohio 6995
PartiesState of Ohio, Plaintiff-Appellee v. Ray E. Basham, Defendant-Appellant.
Decision Date26 December 2007
Docket NumberNo. CT2007-0010.

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2007 Ohio 6995
State of Ohio, Plaintiff-Appellee
v.
Ray E. Basham, Defendant-Appellant.
No. CT2007-0010.
Court of Appeals of Ohio, Fifth District, Muskingum County.
Date of Judgment Entry: December 26, 2007.

Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2006-289.

Affirmed.

D. Michael Haddox, Ronald Welch, Muskingum County Prosecutor's Office, 27 North Fifth, Box 189, Zanesville, OH 43702-0189, for Plaintiff-Appellee.

Cole J. Gerstner, 320 Main Street, Box 190 Zanesville, OH 43702-0190 for Defendant-Appellant.

Before: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Patricia A. Delaney, J.

OPINION

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GWIN, P.J.


{¶1} Appellant, Ray E. Basham, appeals from his convictions and sentences in the Muskingum County Court of Common Pleas on one count of Rape a felony of the first degree in violation of R.C. 2907.02(A)(1)(b) and one count of Gross Sexual Imposition a felony of the third degree in violation of R.C. 2907.05(A)(4). Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} The victim, Shana Miller, testified that she was born September 3, 1992 and that she lived with her father and stepmother. She indicated Jamie Roberts is her stepfather and that she had known appellant for four to five years. Jamie Roberts is the nephew of the appellant. Jamie Roberts is currently in prison for rape of Shana Miller. Shana Miller's sister, Kim Miller, is engaged to Jamie Roberts. (1T. at 100).

{¶3} Shana Miller testified that appellant began touching her in the area of her vagina some time in the fall of 2003 when she was in fifth grade. (1T. at 114). Shana testified that the next day that appellant touched her and her sister over their clothes. (1T. at 117). She further testified that appellant would enter the bedroom where she and her sister were sleeping and lay down between the sisters. Shana testified that she was aware that appellant was having sex with her sister because she could hear them. (1T. at 118). She further testified that appellant then left the room and when he returned he inserted his penis into her, Shana's, vagina. (1T. at 119-120). Shana indicated that she never talked to her sister, Kim Miller, about this. (1T. at 121). In her testimony, she indicated that appellant put his penis in her mouth if she was on her period. (1T. at 120-121). Shana testified that the last time there was sexual contact was January 13, 2005

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on the kitchen floor. She indicated that she reported this activity to her mother on January 16, 2005. (1T. at 124).

{¶4} No forensic evidence corroborated any testimony of the victim.

{¶5} Kim Miller is the sister of Shana Miller and is age 21. (1T. at 131). Kim Miller testified she believes that her sister is a liar in regards to activities involving Jamie Roberts. (1T. at 133). Kim Miller testified that she saw the appellant having sex with Shana. (1T. at 133). She indicated that she knew the appellant and Shana were having sex due to "noises" and the fact that their bodies were moving. (1T. at 135).

{¶6} Joshua Collins testified as a witness for the State of Ohio. Mr. Collins testified that while in the same jail cell appellant admitted the allegations contained in the indictment. (1T. at 158). Mr. Collins was in jail for receiving stolen property. He was unsure of when he heard these alleged statements.

{¶7} Charles Newman testified that he was also in the cell with appellant and Mr. Collins. He did not hear the appellant confess. Mr. Newman recalled when Joshua Collins was talking with appellant, that the appellant told Mr. Collins that he would not discuss his case. (1T. at 182).

{¶8} Kelly Justus, a nurse practitioner, testified that she examined Shana Miller on January 26, 2005. (1T. at 169). She testified that she took an oral history that there was "abuse." However, Ms. Justus never specified what she had been told by Shana Miller. Ms. Justus further testified that Shana's physical examination was normal. She indicated that normal could mean that the alleged victim, Shana Miller, was still a virgin. (1T. at 172-175).

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{¶9} Nick Basham, the son of appellant, testified that he had never observed his father do anything inappropriate with any of the visitors to the house, including Shana and Kim. He further had never seen or heard anything unusual. (1T. 196-197).

{¶10} Appellant was charged with three counts of Rape (RC 2907.02), felonies of the first degree, and three counts of Gross Sexual Imposition (RC2907.05), felonies of the third degree.

{¶11} A jury found appellant guilty on December 13, 2006 of Count 1: Rape [RC 2907.02(A) (1) (b)] and Count 4: Gross Sexual Imposition [RC 2907.05(A) (4)]. Appellant was found not guilty of Counts 2 and 3(Rape) and Counts 5 and 6 (Gross Sexual Imposition). (2T. 252-253).

{¶12} On January 19, 2007 prior to sentencing the trial court conducted a hearing pursuant to R.C. 2950.09. The court after reviewing the evidence presented found appellant to be a sexual predator. The trial court further sentenced appellant to serve a stated prison term of ten years on count one and five years on count two; consecutive, for an aggregate sentence of fifteen years. (Sentencing Hearing T. 19) Appellant was given 122 days credit for time served.

{¶13} Appellant has timely appealed raising the following eleven assignments of error:

{¶14} "I. THE COURT ERRED IN GIVING THE HOWARD CHARGE AND GIVING OF SUCH WAS A VIOLATION OF DUE PROCESS.

{¶15} "II. THE COURT ERRED IN DENYING JURORS THE RIGHT TO TAKE NOTES DURING THE TRIAL THOUGH ADMITTING JURORS HAD AN INABILITY TO

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REMEMBER "FRESHLY" GIVEN JURY INSTRUCTIONS AND NEEDED WRITTEN INSTRUCTIONS.

{¶16} "III. THE COURT ERRED IN FAILING TO MERGE COUNTS ONE AND FOUR FOR SENTENCING PURPOSES.

{¶17} "IV. THE COURT ERRED DURING VOIR DIRE AND ARGUMENT, ALLOWING THE STATE TO REPEATEDLY STATE THAT THE COURT WOULD INSTRUCT THAT ONLY ONE WITNESS WAS NECESSARY TO TESTIFY TO SUPPORT A RAPE CONVICTION.

{¶18} "V. THE COURT ERRED IN EXCUSING JUROR DREIER FOR CAUSE.

{¶19} "VI. THE VERDICT IN COUNTS ONE AND FOUR ARE NOT SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE AND ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶20} "VII. THE COURT ERRED IN ALLOWING THE STATE TO INAPPROPRIATELY VOUCH FOR TRUTHFULNESS OF A WITNESS (T. 132-133, 216) AND ALLOWED THE STATE TO COMMENT ON THE APPELLANT'S RIGHT TO REMAIN SILENT AND NOT TESTIFY DURING HIS TRIAL.

{¶21} "VIII. THE COURT ERRED IN ALLOWING THE TESTIMONY OF AN "EXPERT" WHO TESTIFIED SHE WAS QUALIFIED TO DIAGNOSE (T. 172), YET MADE NO FINDINGS/DIAGNOSIS AND ONLY TESTIFIED AS TO IRRELEVANT HEARSAY FROM SHANA MILLER.

{¶22} "IX. THE COURT ERRED IN FINDING APPELLANT A SEXUAL PREDATOR BASED ON THE EVIDENCE HEREIN.

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{¶23} "X. THE COURT ERRED IN GIVING MAXIMUM CONSECUTIVE SENTENCES CONSIDERING SENTENCING STATUTES R.C. 2929.11 THROUGH 2929.14, AND LACK OF ANY PRIOR CRIMINAL HISTORY.

{¶24} "XI. THE CUMULATIVE EFFECT OF THE NUMEROUS ERRORS DEPRIVED APPELLANT OF A FAIR TRIAL."

I.

{¶25} Appellant argues in his first assignment of error that the trial court erred by rendering a Howard charge when it did, as it could not reasonably be determined that the jury was deadlocked. In State v. Howard (1989), 42 Ohio St.3d 18, the Ohio Supreme Court approved a supplemental charge to be given to juries that have become deadlocked on the question of conviction or acquittal. The Howard charge states:

{¶26} "* * * The principal mode, provided by our Constitution and laws, for deciding questions of fact in criminal cases, is by jury verdict. In a large proportion of cases, absolute certainty cannot be attained or expected. Although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusion of your fellows, each question submitted to you should be examined with proper regard and deference to the opinions of others. You should consider it desirable that the case be decided. You are selected in the same manner, and from the same source, as any future jury would be. There is no reason to believe the case will ever be submitted to a jury more capable, impartial, or intelligent than this one. Likewise, there is no reason to believe that more or clearer evidence will be produced by either side. It is your duty to decide the case, if you can conscientiously do so. You should listen to one another's arguments with a disposition to be persuaded. Do not hesitate to reexamine your views

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and change your position if you are convinced it is erroneous. If there is disagreement, all jurors should reexamine their positions, given that a unanimous verdict has not been reached. Jurors for acquittal should consider whether their doubt is reasonable, considering that it is not shared by others, equally honest, who have heard the same evidence, with the same desire to arrive at the truth, and under the same oath. Likewise, jurors for conviction should ask themselves whether they might not reasonably doubt the correctness of a judgment not concurred in by all other jurors." Howard, at paragraph two of the syllabus. In the present case, the trial court's charge tracked the language in Howard.

{¶27} Crim.R. 30 provides that a party may not assign as error the giving or failure to give an instruction unless he objects before the jury retires to consider its verdict. Where a defendant fails to raise a timely objection to the giving or failure to give an instruction, the defendant has waived all but plain error. State v. Adams (1980), 62 Ohio St.2d 151, 154. Initially, there is no indication in the record that appellant raised any objection to the trial court's decision to issue a Howard charge to the jury and, therefore, has waived all but plain error. In this case, however, the trial court did not commit any error in issuing this charge to the jury, plain or otherwise.

{¶28} The decision to give a Howard charge is reviewed under an abuse of discretion...

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