State v. Bouyer
| Docket Number | 112045 |
| Decision Date | 28 December 2023 |
| Citation | 2023 Ohio 4793 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. JASON BOUYER, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
1
2023-Ohio-4793
STATE OF OHIO, Plaintiff-Appellee,
v.
JASON BOUYER, Defendant-Appellant.
No. 112045
Court of Appeals of Ohio, Eighth District, Cuyahoga
December 28, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-647216-A
JUDGMENT: AFFIRMED
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Eben McNair, Megan Helton and Caroline Maver, Assistant Prosecuting Attorneys, for appellee.
Patituce and Associates, LLP, Megan M. Patituce, and Joseph C. Patituce, for appellant.
JOURNAL ENTRY AND OPINION
EMANUELLA D. GROVES, JUDGE
{¶ 1} Defendant-appellant Jason Bouyer ("Bouyer") appeals his convictions for rape and other charges. For the following reasons, we affirm.
Factual and Procedural History
{¶ 2} In January of 2020, a grand jury indicted Bouyer on twenty-one sex-related charges involving three victims, each related to Bouyer by blood or marriage. The first set of charges pertained to J.D., D.O.B. 12/23/2004, alleging two counts of rape (Counts 7 and 10); one count of attempted rape (Count 3); three counts of kidnapping (Counts 6, 8, and 11); three counts of sexual battery (Counts 4, 9, and 12); three counts of gross sexual imposition (Counts 1, 2, 5); one count of importuning (Count 13); and one count of endangering children (Count 14), for a total of 14 counts. The three counts of kidnapping included sexual motivation specifications and twelve of the counts (Counts 1-12) included sexually violent predator specifications. Counts 1 and 2 were alleged to have occurred between January 1, 2015, and December 31, 2015; Counts 3-6 between January 1, 2016, and November 30, 2016; Counts 7-9 between January 1, 2017, and December 22, 2017; Counts 10-12 between December 23, 2017, and February 28, 2018; Count 13 between May 1, 2018, and June 30, 2018; and Count 14 between January 1, 2015, and February 28, 2018.
{¶ 3} The next set of charges pertained to T.W., D.O.B. 2/29/2000, alleging two counts of gross sexual imposition (Counts 15 and 16). The final set of charges pertained to M.B., D.O.B. 5/25/2004, and alleged three counts of gross sexual imposition (Counts 18-20), one count of soliciting (Count 17), and one count of disseminating matters harmful to a juvenile (Count 21). Count 15 was alleged to
have occurred between June 1, 2011, and August 31, 2011;[1] Count 16 on March 1, 2016; Count 17 between December 1, 2015, and May 1, 2018; and Counts 18-21 between May 1, 2018, and November 18, 2019.
{¶ 4} The allegations surfaced in May 2019 after J.D. disclosed to two of her family members that Bouyer had sexually assaulted her. J.D. became upset while attending a family function at her paternal grandparents' home. When her aunt, B.D., and her cousin, K.D., tried to find out what was wrong, J.D. broke down. At the time, J.D. was not able to verbalize exactly what happened, but through questions and hand gestures, B.D. and K.D. learned that Bouyer had sexually assaulted her.
{¶ 5} On the way home, K.D. told her mother, J.W., about the conversation with J.D. J.W. decided they needed to talk to J.D.'s father, Manny. The following day, they went to Manny's house. J.W. went to the garage to talk to her brother, while K.D. went inside to talk to J.D. J.W. did not go into detail with her brother but told him that something was happening to J.D. and that he needed to talk to her. J.D. eventually talked to her father and explained, without a lot of detail, what happened. The following day, he took her to file a police report.
{¶ 6} At trial, J.D. testified that her mother, N.B., met Bouyer in approximately 2010 and married him in 2015. J.D.'s relationship with her mother changed after she met Bouyer. Before, J.D. felt she could confide in her mother.
Afterward, J.D. felt her mother told Bouyer everything that J.D. discussed with her. Additionally, when Bouyer and N.B. started dating, N.B. would disappear. J.D. would have to stay with anyone who would take her because N.B. was not around.
{¶ 7} Beginning in 2014, J.D. was in therapy, primarily to address the absence of her biological father. Her therapy sessions were not entirely confidential. Her mother and Bouyer would meet with the therapist to discuss issues J.D. raised during sessions. As a result, J.D. did not feel she could confide in her therapist.
{¶ 8} The first time Bouyer touched her inappropriately they were wrestling. At the time, Bouyer, N.B., J.D., and M.B. were living together at a house on Gramatan in the city of Cleveland. They would all play wrestle with one another. Sometime after N.B. and Bouyer got married in May 2015, and around the time J.D. turned 10 or 11, while wrestling Bouyer touched J.D. on her vagina over her clothes. J.D. froze. She was not sure if it was accidental or purposeful. However, she remembered that his hand stayed on her vagina and that he moved his fingers against her.
{¶ 9} It happened again in Bouyer's bedroom, after her 11th birthday. Her mother had just left for work. In those days, her mother worked at bars, usually in the evenings, between 5:00 p.m. and 3:00 a.m. While they were wrestling, Bouyer's bare hand moved inside her pants and touched her vagina, bare skin to bare skin. She froze again. She began to realize his actions were intentional.
{¶ 10} There were times when J.D. and Bouyer had a good relationship. Her biological father was not always around and J.D. struggled with his absence. As a
result, she would talk to Bouyer. There was a time however when those conversations turned to "gross" things. When asked what "gross" meant, J.D. indicated sexual things. During one of those conversations in his bedroom, J.D. ended up lying on the bed. She remembered Bouyer grabbed a condom, put it on, and told her to pull down her pants. He pressed his penis to the outside of her vagina, skin to skin. She felt pressure and pain and told him to stop, which he did. She got up, got dressed, and went downstairs. This incident happened sometime in 2016, the year J.D. turned 12.
{¶ 11} Another time, J.D. was in her bedroom in the basement talking with Bouyer at the Gramatan house. The conversation turned to sexual things. J.D. initially testified that they were talking about her boyfriend, whom she started dating on December 14, 2017. However, she later testified that this incident happened in August 2017. It happened at night, after her mother went to work, while M.B. was upstairs. Bouyer asked her to "give him head." When asked what that meant, J.D. testified it involved her mouth on his penis. She did not feel like she could say no because she was afraid of him. She complied and during the act, Bouyer instructed her how to perform. She remembered that he moved her head aside before he ejaculated. He used his shirt to clean himself up.
{¶ 12} A second incident of fellatio occurred while the two were in the bedroom Bouyer shared with N.B. Bouyer again instructed her how to perform and moved her head aside before he ejaculated. J.D. dated this incident in February 2018 at the Gramatan house. J.D. never told her mother what happened because
she feared her mother would tell Bouyer. She was afraid that her mother would not do anything, that she, J.D., would get in trouble, or something worse.
{¶ 13} When Bouyer asked her a third time for oral sex, she refused. The next day, she randomly got in trouble, which she believed happened, in part, because she said no. This incident occurred sometime after the family moved to a home on Parkridge in the spring 2018.
{¶ 14} J.D. disclosed the abuse to her boyfriend J.B. over the phone. He advised her to tell someone. She told him she did not know how to tell anyone and that she was scared. K.D. and B.D. testified regarding J.D.s disclosure to them of the sexual abuse. J.W. testified regarding the subsequent conversation with Manny. Manny testified to his conversations with his sister J.W. and then J.D.'s disclosure to him about what happened. J.B. testified about his conversation with J.D.
{¶ 15} The police, in the course of the investigation, interviewed T.W. T.W. would sometimes babysit J.D. and M.B. The first time Bouyer touched T.W., she was 11 years old. She remembered being at the Gramatan house and standing by the door, waiting for some friends. It was around June or July 2011. She was looking outside for her friends when Bouyer came up behind her and "caressed" her butt. He did not grab her but placed his hand on her butt and moved his hand back and forth against her. While doing this, Bouyer commented that T.W.'s body was better than her sister's.
{¶ 16} The second incident T.W. remembered occurred at her 16th birthday party in 2016. To symbolize the change from child to woman, she had
choreographed a dance where the long skirt she was wearing would unwrap to reveal a short skirt. Her father was supposed to dance with her, but they had a fight and T.W. wanted someone else to take over for him. From her recollection, Bouyer volunteered and she agreed. After the dance, Bouyer grabbed her by the hips and pumped his pelvis against her butt. He did not grind against her but she was able to feel his penis. He mentioned at the time that she was finally 16, the age of consent. He had previously told her that the age of consent was 16. Both J.D. and M.B. testified that Bouyer made similar comments to them, to remind them that the age of consent was 16.
{¶ 17} Manny testified to a set of text messages he saw on J.D.'s phone while they were on a family trip to Puerto Rico in 2017. In one of the texts, J.D. wrote "Sneak out and go clubbing lol." Bouyer responded, "We going to be in the club when you turn 16. Popping bottles." These text messages were preserved in evidence and presented at trial. Manny told J.D.'s mother, N.B., about the texts because he felt the communication between Bouyer and J.D. was inappropriate. To Manny's knowledge, N.B. did...
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