State v. Brady, 2007 Ohio 1453 (Ohio App. 3/29/2007)
| Decision Date | 29 March 2007 |
| Docket Number | No. 87854.,87854. |
| Citation | 2007 Ohio 1453 |
| Parties | State of Ohio, Plaintiff-Appellee, v. James Brady, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Kevin M. Spellacy, Esq., McGinty, Hilow & Spellacy Co., L.P.A., 614 West Superior Avenue, Suite 1300, Cleveland, Ohio 44113, Attorney for Appellant.
William D. Mason, Esq., Cuyahoga County Prosecutor, By: Kristen L. Sobieski, Esq., Asst. County Prosecutor, The Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113, Attorneys for Appellee.
Before:
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant James Brady appeals from his convictions for two counts of rape and two counts of sexual battery. For the reasons set forth below, we affirm.
{¶ 2} On April 30, 2004, defendant was indicted pursuant to a 24-Count indictment that accused him of sexually abusing his 42 year-old mentally retarded stepdaughter from May 2002 until November 2002. Counts One through Six charged defendant with rape and alleged that he purposely compelled her to submit by force or threat of force. Counts Seven through Twelve charged defendant with rape and alleged that defendant knew or had reasonable cause to believe that the woman's ability to resist or consent was substantially impaired due to a mental or physical condition. Counts Thirteen through Eighteen charged defendant with sexual battery and alleged that defendant engaged in sexual conduct with the woman knowing that her ability to appraise the nature of or control of her conduct was substantially impaired. Counts Nineteen through Twenty-Four charged defendant with sexual battery and alleged that defendant engaged in sexual conduct with the woman and that he is her adoptive parent and/or stepparent.
{¶ 3} Defendant pled not guilty and the matter proceeded to a jury trial on July 26, 2005.
{¶ 4} The state presented the testimony of the woman, R.B.,1 who was born in 1961. In 2002, when she still resided with her mother and her stepfather, defendant, R.B. worked on a maintenance crew at Frommer ATC and her boss was Nate Hart. She generally took a cab to work, and worked from 1:00 p.m. until 7:00 p.m.
{¶ 5} The woman testified that her mother left early in the morning to go to work and defendant would generally wake her up. When she was getting out of the bathtub, and was getting dressed, defendant approached her. He was wearing just a snap robe and told her that she had time and did not have to get dressed. The woman told defendant that she did not want to have sex but he took off his towel then kissed her vagina then inserted his penis into her. She testified that defendant has a big penis. The woman further testified that some "white stuff came out" and she became scared. She took a shower to try to get the white stuff off of her then told defendant to go into his bedroom so she could get ready for work. Defendant told the woman that this would make her feel good to go to work and would calm her down.
{¶ 6} The woman also testified to another incident when defendant had her kiss his penis and told her it would make him feel good. She testified that a liquid came out of his penis. R.B. stated that the white stuff tasted yucky so she spit it out in the toilet, but some was around his penis and on the sheets.
{¶ 7} The woman testified that she tried to talk to Nate Hart about what had happened but felt uncomfortable and asked him if she could speak with a female. She then spoke to Lisa Gessler and reported that defendant put his penis inside of her. The woman had difficulty remembering but stated that defendant put his penis in her twice.
{¶ 8} On cross-examination, the woman acknowledged that she had sent her father cards. She also admitted that she saw her doctor in September 2002 but did not tell her of any abuse. The woman stated that she watches soap operas and that shortly before her disclosure to Gessler she had watched a movie about a woman who accused someone of rape. She also stated that she had taken a class on sex education in which she had learned the words penis and vagina. She stated on redirect examination, however, that she knew the difference between the truth and a lie and that she had told the truth.
{¶ 9} Nathaniel Hart testified that he works for the Cuyahoga County Department of Mental Retardation and that he supervises a cleaning crew which included R.B. Hart testified that the woman appeared to enjoy her job and talked to the other workers but by the summer of 2002, she had "an attitude" and began protesting her job assignments. The woman became fearful and cried when it was time to go home but she did not allow Hart to call her parents. She yelled and rocked while Hart drove the workers home. She told Hart that she did not want to go home but would not tell him the reason.
{¶ 10} Hart informed his supervisor, Jim Cable, of the woman's behavior and Cable arranged for her to have a consultation in the psychiatric department. Since making the disclosure, the woman has lost a lot of weight, is tearful, and has panic attacks. She sometimes lies then quickly recants her lies.
{¶ 11} Jim Cable testified that Hart is one of his best employees. He further testified that R.B. functions at the level of a younger adolescent, i.e., in the range of a thirteen or fourteen year-old.
{¶ 12} R.B.'s general demeanor was friendly, bubbly and pleasant. Cable later learned that R.B. was upset, so he spoke with her. She became teary-eyed but would not talk. Cable asked if she wanted to speak with a female and she replied that she did. The next day, R.B. spoke to psychologist Lisa Gessler and Gable found an emergency placement for her. Since this time, the woman's demeanor is now bitter and sad and she is difficult to work with.
{¶ 13} Lisa Gessler testified that the woman was crying heavily when they met so Gessler gave her gum in an effort to stop her from sobbing. The woman told Gessler that her father touches her "down below" and that she tells him "no." R.B. then related an incident which occurred near the shower. She also told Gessler that she was worried about being pregnant because defendant does not use a condom. She further stated that defendant "does it hard" and she keeps getting infections. The woman was unsure of the time of such conduct but stated that it started after defendant had surgery on his arm. The abuse occurred in the mornings and the last incident occurred on a Monday. Gessler related the woman's allegations to Jeff Starr of the Major Unusual Incident Department. On cross-examination, Gessler admitted that a report prepared by her supervisor indicates that one of R.B.'s goals was to live independently.
{¶ 14} Investigator Jeff Starr testified that he met with Cable, Gessler and R.B. He then transported her to the Emergency Room at Southwest Hospital where they were met by North Royalton Police Officer Rybicki and later by Dr. Debra Russell.
{¶ 15} The woman indicated that she did not want to go home and Starr arranged for her to go to respite care. According to Starr, the woman was sad, crying, and afraid that her parents were going to be upset with her.
{¶ 16} Officer Rybicki testified that she stayed with the woman in the examination room. The woman was crying, shaking and would not let Rybicki leave.
{¶ 17} On cross-examination, Rybicki testified that she inventoried various items when a search warrant was conducted at defendant's home.
{¶ 18} Dr. Debra Russell testified that she examined the woman on November 6, 2002. The woman was upset and anxious and informed Russell that two days earlier, defendant put his private into her private. She asked him to stop and pushed his face away but he did not stop. She also stated that there were several other times during which defendant made her kiss his penis and other times during which he had kissed her genitals. The woman stated that defendant told her that he wanted to make her feel good before she went to work, and the woman kept repeating that she did not know why a father would do this to his daughter. Dr. Russell asked the woman if she knew what a condom is and she stated that she does and that defendant did not use condoms during sex. The woman indicated in response to questioning that defendant hurt her "down there" but did not hit her.
{¶ 19} Dr. Russell further testified that the woman told her that when defendant makes her kiss his penis, white stuff comes out and she does not like the way it tastes so she spits it out into the sink. Dr. Russell next learned that R.B. had brushed her teeth, showered, and washed her clothes since the incidents. Dr. Russell asked the woman why she had not told her mother about the incidents and the woman became upset and anxious. She expressed fear that her mother would get mad at her and would think that she is just making things up.
{¶ 20} Dr. Russell conducted a physical examination of the woman and noted that the woman had tenderness and mild swelling of the vagina and vaginal walls. There was no infection. There was tenderness, redness and inflammation of the cervix, or area beyond the vagina. According to Dr. Russell, redness and swelling of the vaginal area are indicative of injury to the tissues.
{¶ 21} On cross-examination, Dr. Russell stated that the findings could be caused by masturbation only if the person masturbates to the point of hurting herself and were not consistent with frequent masturbation. She also indicated that the finding of tenderness was based on the woman's complaints but the inflammation was from some form of trauma.
{¶ 22} North Royalton Police Det. James Gross testified that he met with Officer Rybicki and Jeff Starr and obtained a search warrant for defendant's home. The officers removed various items of clothing and bedding and then interviewed defendant. Defendant told the...
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