State v. Carswell
| Docket Number | S-22-018 |
| Decision Date | 15 December 2023 |
| Parties | State of Ohio Appellee v. Andrew R. Carswell Appellant |
| Court | Ohio Court of Appeals |
1
2023-Ohio-4574
State of Ohio Appellee
v.
Andrew R. Carswell Appellant
No. S-22-018
Court of Appeals of Ohio, Sixth District, Sandusky
December 15, 2023
Trial Court No. 19CR70
Beth A. Tischler, Sandusky County Prosecuting Attorney, and Alexis M. Otero, Assistant Prosecuting Attorney, for appellee.
Michael H. Stahl, for appellant.
DECISION AND JUDGMENT
SULEK, J.
{¶ 1} Appellant, Andrew Carswell, appeals from the judgment of the Sandusky County Court of Common Pleas, dismissing his March 22, 2021 Petition to Vacate or Set Aside Sentence and Conviction Pursuant to R.C. 2953.21. For the reasons that follow, the trial court's judgment is affirmed in part and reversed in part. This matter is
remanded to the trial court for a hearing on the first cause of action set forth in Carswell's petition.
Statement of the Case
{¶ 2} Carswell was indicted by the Sandusky County Grand Jury on January 18, 2019, with one count of rape, two counts of gross sexual imposition, and one count of importuning.
{¶ 3} Following a two-day trial that began on December 9 and ended on December 10, 2019, the jury convicted Carswell of one count of gross sexual imposition, importuning, and rape. The trial court merged the convictions for gross sexual imposition and rape, and then sentenced Carswell to serve 15 years to life in prison for the offense of rape. The trial court sentenced Carswell to serve three years in prison for the offense of importuning. The sentences were ordered to run consecutively, for an aggregate sentence of 18 years to life in prison.
{¶ 4} Carswell appealed, and on September 24, 2021, this court affirmed the judgment of the trial court. On October 4, 2021, Carswell filed a motion to certify a conflict, and on October 5, 2021, he filed a motion for reconsideration. This court denied Carswell's motion for reconsideration on December 9, 2021, and denied his motion to certify a conflict on January 28, 2022. Carswell then sought the jurisdiction of the Supreme Court of Ohio to review this court's decision of his appeal, however jurisdiction was declined on April 27, 2022.
{¶ 5} On March 22, 2022, Carswell filed in the trial court a Petition to Vacate or Set Aside Sentence and Conviction Pursuant to R.C. 2953.21, wherein he asserted ten causes of action. The trial court dismissed Carswell's petition by judgment entry journalized on July 19, 2022. It is from this dismissal that Carswell currently appeals.
Statement of Facts Trial
{¶ 6}
At trial, 8-year-old L.Y. testified that Carswell, who is married to her cousin, occasionally stays at her family's house during the holidays. She stated that on the evening of Thanksgiving, November 22, 2018, she and Carswell were alone in her basement watching a movie, when Carswell asked her to change into a nightgown so he could give her a massage. Carswell and L.Y. were lying together on the air mattress, with Carswell's stomach facing L.Y.'s back, when he started massaging her shoulders and then her feet. Next, he began touching her vagina. L. Y. testified that his finger went inside her vagina, and that it hurt. She said he was breathing heavily and sweating, while, with one hand, alternately licking his finger, touching his penis, and then touching L.Y.'s vagina. With his other hand, he was holding his underwear down, exposing his genitals. Carswell asked L.Y. to kiss his penis, and L.Y. refused. The massage ended when L.Y. asked to get a snack. Carswell followed L. Y. to the kitchen and spoke with other family members. L.Y. testified that while Carswell was talking to relatives, she went upstairs into her sister's room and told her sister, 10-year-old R.Y., what had happened. L.Y. stated that she was scared because she "pinky promised" not to tell and because Carswell
had threatened to put guns and knives in her Christmas presents if she did tell. After brief discussion, the sisters decided to go to their cousin A.R.'s room.
{¶ 7} A.R., an adult, testified that she had been asleep when the girls rushed into her room and told her something bad had happened. L.Y. was crying as she recounted her story to A.R. A.R. summoned L.Y.'s mother, A.Y., into the room and informed her of the situation. A.R. testified that she did not talk to Sheriffs deputies that night, but that she did talk to Detective Arp at a later time.
{¶ 8} A.Y. testified that after Thanksgiving dinner, Carswell went "Black Friday" shopping with the family, while L.Y. stayed at home with her father, A.Y.'s husband, J.Y. The parties returned from shopping around 9:30 p.m., and Carswell retreated to the guest room in the basement. A.Y. testified that at the top of the stairs leading to the basement was a baby gate with a pressure-operated foot pedal latch, which "makes, like a screeching noise when it opens." She stated that the gate is always kept shut in order to keep the dog out of the basement, and that if the gate were not kept closed, the dog would be able to knock it over, as the gate is only loosely attached to the walls by "little things almost like a shower curtain that you have to squeeze tight to hold it on the top." According to A.Y., the noise of the gate being opened could be heard by someone in the basement.
{¶ 9} At trial, A.Y. recalled that when L.Y. came up the stairs on Thanksgiving night, Carswell was right behind her and remained in close proximity to her as he helped her get milk and cookies. She further testified that L.Y. having a snack so late in the
evening was not part of L.Y.'s normal routine. When A.Y. went upstairs for bed that night, she was pulled into A.R.'s room, where her daughters were crying. L.Y. said "I'm sorry, mommy" and told her what had occurred in the basement. A.Y. testified that she immediately called law enforcement, although at trial she could not specifically recall whether she dialed 911 or called the Sandusky County Sheriffs Department. A.Y. also testified that she had previously worked as the Deputy Director of Children Services for Erie County.
{¶ 10} Deputies Darling and Ray each testified that at around 11:30 p.m., on November 22, 2018, they received a call to respond to a sexual assault involving a minor. The officers were met at the residence by L.Y.'s parents and another relative. Due to the nature of the incident, the officers did not take any statements from the parties. Instead, they called Detective Sergeant Arp to the scene.
{¶ 11} Arp testified that after he arrived on scene and informed Carswell of the allegations. Carswell stated that while he was spooning with L. Y., alone in the basement, he had a vivid dream that he was rubbing his wife's vagina. He admitted that touching may have been possible, but he did not remember it occurring. Carswell's wife confirmed that these dreams and subsequent groping have occurred in the past. Arp stated that after he finished speaking with Carswell, he escorted him to Darling's cruiser. He also strongly suggested to L.Y.'s mother that she take L.Y. to be examined by a S.A.N.E. nurse as soon as possible.
{¶ 12} Sexual Assault Nurse Examiner ("S.A.N.E. nurse") Amanda McCall, testified that a day after the incident, on November 23, 2018, she conducted a sexual assault examination on L.Y. The exam consisted of an interview, a head-to-toe analysis, and an external swabbing of L.Y.'s vaginal and perianal area. There were no physical findings as a result of the exam and McCall concluded that this was consistent with the facts that L. Y. had disclosed.
{¶ 13} Angela Wheeler, an investigator for Sandusky County Children Services, testified that an investigation of the incident was opened on November 26, 2018. In connection with the investigation, she scheduled a home visit with the family, during which she met the family and "just ma[d]e face-to-face contact with the child." From there, she set up a forensic interview with L.Y. that occurred on November 30, 2018. Based on L.Y.'s intelligence, eye contact, and responsiveness during the interview, Wheeler concluded that this case was "indicated," meaning that the child said the incident happened and the perpetrator said that it did not. Wheeler reported her conclusion to law enforcement.
{¶ 14} Lindsey Nelsen-Rausch, a forensic scientist employed at the Ohio Bureau of Criminal Investigations ("BCI"), testified about DNA analysis that was conducted on L.Y.'s underwear and on samples taken from L.Y.'s sexual assault examination with McCall. All vaginal samples were attributable to L.Y. Additional data from the perianal area contained male DNA that was otherwise uninterpretable because the sample was "just not enough," and so Nelson-Rausch was unable to determine whether the male
DNA that was found on L.Y.'s body belonged to Carswell or to someone else. Underwear samples, including samples from the interior back panel, interior crotch, interior front panel, exterior back panel, and exterior front panel to mid-crotch, all had DNA consistent with Carswell. A swab from the interior front panel contained additional DNA that was uninterpretable, even as to gender, because there was not enough of it to make a comparison.
{¶ 15} Defense counsel cross-examined Nelsen-Rausch regarding the possibility of there being an innocent transfer of DNA to a pair of underwear as the result of the wearer sitting on an object that someone else had touched. Nelson-Rausch testified that such a transfer was possible. Defense counsel also cross-examined Nelsen-Rausch as to the possibility of moisture from the DNA testing process being able to draw DNA from the outside of the underwear fabric to the inside. Nelsen-Rausch testified that she thought this would be unlikely, but she could not be sure.
{¶ 16} After the state rested its case, counsel for both sides made closing arguments. Carswell's defense was that the victim had fabricated her allegations. Addressing the DNA evidence, defense counsel...
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