State v. Basham, 2007 Ohio 6995 (Ohio App. 12/26/2007)
| Citation | 2007 Ohio 6995 |
| Decision Date | 26 December 2007 |
| Docket Number | No. CT2007-0010.,CT2007-0010. |
| Parties | State of Ohio, Plaintiff-Appellee v. Ray E. Basham, Defendant-Appellant. |
| Court | United States Court of Appeals (Ohio) |
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.
{¶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.
{¶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 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).
{¶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.
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.
{¶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}
{¶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} 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 standard. State v. Shepard, 10th Dist. No. 07AP-223, ...
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