State v. Carbaugh
| Decision Date | 18 April 2023 |
| Docket Number | CT2022-0050 |
| Citation | 2023 Ohio 1269 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. JOSHUA A. CARBAUGH Defendant-Appellant |
| Court | Ohio Court of Appeals |
{¶1} Defendant-appellant Joshua A. Carbaugh ["Carbaugh"] appeals his convictions and sentences after a jury trial in the Muskingum County Court of Common Pleas.
{¶2} The Muskingum County Grand Jury indicted Carbaugh on one count of rape in violation of R.C. 2907.02(A)(1)(b). The indictment stated that the victim, R.N.T., was seven years old during the incidents, and the indictment alleged that the rape occurred between October 11, 2019 and November 20, 2019. The first count of the indictment also contained a sexually violent predator specification in violation of R.C. 2941.148, alleging that Carbaugh had been convicted of a third-degree felony sexual assault in December, 2015 in the state of West Virginia. The second count of the indictment charged Carbaugh with one count of gross sexual imposition in violation of R.C. 2907.05. The indictment alleged that the sexual contact occurred between October 11, 2019 and October 20, 2019 when the victim R.N.T. was seven years old. Count three of the indictment charged Carbaugh with failure to register as a sex offender in violation of R.C. 2950.04(A)(2) between the dates of October 11, 2019 and October 18, 2019. Count four of the indictment charged Carbaugh with failure to register as a sex offender in violation of R.C. 2950.04(A)(2) between the dates of October 31, 2019 and November 8, 2019. Count five of the indictment charged Carbaugh with failure to register as a sex offender in violation of R.C. 2950.04(A)(2) between the dates of November 14, 2019 and November 20, 2019. Carbaugh pled not guilty and exercised his right to a jury trial.[1] {¶3} The victim's great-grandmother M.M. testified that at the time of the offenses she had custody of R.N.T. 3T. at 404[2]. M.M. testified that during the Thanksgiving holiday in 2019, her granddaughter A.E. and her boyfriend, Carbaugh, came to visit from West Virginia. 3T. at 407. After the couple left to return to West Virginia, R.N.T. came crying to M.M. complaining of pain between her legs. 3T. at 408. M.M. laid R.N.T. down on the floor, and examined her. M.M. testified, "she was as red as a pack of cigarettes." Id. at 408-409. M.M. testified that R.N.T. disclosed to her that Carbaugh, "held her vagina apart and took his private and rubbed it up and down inside of me" and "she was beat red." Id. at 409. M.M. telephoned her son, G.E., and told him what R.N.T. had disclosed to her. G.E. called the police. 3T. at 400. Deputy Shawn Williams responded to the home. 2T. at 289-290. Deputy Williams spoke with M.M. and her son G.E. and collected evidence from the scene. R.N.T. was taken to Nationwide Children's Hospital for the Center of Family Safety and Healing, commonly referred to as C.A.C. 1T. at 198.
{¶4} Ashely Cooley testified that she is a medical forensic interviewer who, as part of a multi-disciplinary team, conducts an interview of a child to assess for allegations of abuse or neglect. 1T. at 199. The interview is recorded with Ms. Cooley alone in the room with the child. 1T. at 205. Other members of the team can watch as the interview is projected onto a screen in a separate room. Id.[3] Neither law enforcement or social services was present to view the interview. 1T. at 220.
{¶5} Initially, R.N.T. denied any inappropriate conduct or touching had occurred. 1T. at 224; 245-246. Eventually, R.N.T. told Ms. Cooley that Carbaugh put his thing in her "monkey." 1T. at 225. R.N.T. told Ms. Cooley that it "felt fun." Id. at 227. She also told Ms. Cooley that she touched it with her hand. 1T. at 230. It was skinny and round and "gooey stuff was coming out the hole part." 1T. at 230. R.N.T. told Ms. Cooley that it was silver and gooey. Id. R.N.T. said that it went inside of her and felt warm. Id. at 231. R.N.T. reported that Carbaugh told her not to talk about it because he would go to jail. Id. at 232.
{¶6} Additionally, during the forensic interview, R.N.T. told Ms. Cooley that her younger brother had witnessed the acts and was told to go back to bed. 1T. at 246. Further R.N.T. said that her mother saw Carbaugh with "his thing in her monkey" and the mother laughed and asked if he could do that to her. 1T. at 247. Further, R.N.T. had stated that her mother was sleeping, and she had been bumped and woken up and did nothing. 1T. at 247. R.N.T. did not mention that she had been told not to say anything until Ms. Cooley asked her if she had been told not to say anything.
{¶7} R.N.T. testified that she was now nine years old. 3T. at 422. R.N.T. testified that she told her great-grandmother that her private parts between her legs hurt. Id. at 427-428. She testified it hurt because Carbaugh put his "monkey" inside mine…" Id. at 426; 437. She further testified that Carbaugh told her to keep it a secret. Id. R.N.T. testified that Carbaugh's "monkey" looked like a "hot dog." Id. at 428. She touched it with her hands and it felt like "cardboard." Id. She described white-ish, yellow-ish gooey stuff. 3T. at 429. R.N.T. did not remember going to C.A.C. and meeting with Ms. Cooley. 3T. at 430.
{¶8} On cross-examination R.N.T. testified that it happened more than once. 3T. at 439. Each time it occurred was either in the kitchen or the living room. Id. In the kitchen, R.N.T. described standing in front as Carbaugh was sitting down. 1T. at 440. Carbaugh told her to sit on his legs and he put his monkey into R.N.T.'s monkey. Id. at 440-441. She further testified that Carbaugh had to clean the oozy stuff out of her monkey afterward. 3T. at 451.
{¶9} R.N.T. testified that when she told her great-grandmother that her private parts were hurting, she was told to lay down on a towel while M.M. looked at it, and it was "all red." 3T. at 444. R.N.T. denied telling anyone that "Freddy Kruger" had hurt her. 3T. at 456. She further denied that she ever told anyone that either her cousin T.E., her cousin's boyfriend Mark, or her brother had hurt her. 3T. at 457. R.N.T. further denied that she ever told B.H. that she would tell people he had tried to touch her inappropriately. 3T. at 459.
{¶10} The defense called I.W. the grandmother of R.N.T. I.W. testified that R.N.T. has a reputation within the family as being a liar. 3T. at 495. I.W. further claimed that R.N.T. falsely accused her biological father of touching her inappropriately. Id. at 496-497. I.W. testified that R.N.T. told her that Freddy Kruger kept wanting to touch her inappropriately. Id. at 497. I.W. further testified that R.N.T. has falsely accused her cousin and her cousin's boyfriend of trying to inappropriately touch her. Id. at 498. A person "R.S." was also reported by R.N.T. to be touching her inappropriately. Id. at 500. I.W. did not report any of these incidents to the appropriate authorities. Id. at 509.
{¶11} I.W. testified that she does not believe Carbaugh would do such a thing because "he's just not that type of guy." 3T. at 508-509.
{¶12} The defense next called B. H., R.N.T.'s biological father's roommate. B.H. testified R.N.T. had threatened him by stating she would tell that he had touched her inappropriately. 3T. at 524.
{¶13} R.N.T.'s mother, A.E. testified for the defense. She testified that her and Carbaugh came from West Virginia several times. 3T. at 536. Each time the couple would stay with A.E.'s grandmother, and each time R.N.T. was present. Id. A.E. testified that Carbaugh was never left alone for extended periods of time with R.N.T. Id. at 543. A.E. testified that R.N.T. got along well with Carbaugh. Id. at 547. A.E. testified that R.N.T. told her that she had made up the allegations because Carbaugh would not give her a cell phone when she was getting a bath and that she felt he was taking her mother away from her. 3T. at 551. A.E. testified that R.N.T. had been exposed to pornography accidently on multiple occasions. Id. at 552. A.E. further testified that R.N.T. had accused multiple people of the same inappropriate conduct.
{¶14} The jury found Carbaugh guilty of rape with a sexually violent predator specification, and gross sexual imposition. After hearing the evidence related to each count, the trial judge found Carbaugh guilty of three counts of failure to register. 4T. at 616-628; 732-733.
{¶15} The trial court sentence Carbaugh on count one to a sentence of life without parole, on count two to sixty months, and to a period of thirty-six months on each of counts four, five, and six. All counts were ordered to be served consecutively, for an aggregate prison sentence of life without parole plus fourteen years.
{¶16} Carbaugh raises six Assignments of Error,
{¶17} "I. THE PROPORTIONALITY OF THE SENTENCE WAS INCONSISTENT WITH THE PRINCIPLES SET FORTH [IN] O.R.C. §2929.11 AND FACTORS TO BE CONSIDERED IN O.R.C. §2929.12.
{¶18} "II. SHOULD THIS HONORABLE COURT SHOULD [sic] VACATE THE TRIAL COURTS DECISION TO IMPOSE CONSECUTIVE SENTENCES ON COUNTS 2-3 AND 5 BECAUSE THE CONSECUTIVE SENTENCES ARE IN CONTRAVENTION OF THE SENTENCING STATUTES.
{¶19} "III. THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE.
{¶20} "IV. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION.
{¶21} "V. THE TRIAL COURT ERRED WHEN ADMITTING THE STATE'S EXHIBIT V-1 WHICH WERE NOT...
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