State v. Carter

• Decision Date: 07 June 2018
• Docket Number: No. 104874,104874
• Citation: 2018 Ohio 2238,114 N.E.3d 673
• Parties: STATE of Ohio, Plaintiff–Appellee v. Demetrius H. CARTER, Defendant–Appellant
• Court: Ohio Court of Appeals

114 N.E.3d 673

2018 Ohio 2238

STATE of Ohio, Plaintiff–Appellee

v.Demetrius H. CARTER, Defendant–Appellant

No. 104874

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: June 7, 2018

Susan J. Moran, 55 Public Square, Suite 1616, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT.

Michael C. O'Malley, Cuyahoga County Prosecutor, By: Mary M. Frey, Assistant County Prosecutor, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.

BEFORE: Laster Mays, J., Kilbane, P.J., and E.T. Gallagher, J.

JOURNAL ENTRY AND OPINION

ON RECONSIDERATION¹

ANITA LASTER MAYS, J.:

{¶ 1} After reconsideration, the opinion as announced by this court on December 7, 2017, State v. Carter , 8th Dist. Cuyahoga No. 104874, 2017-Ohio-8864, 2017 WL 6055538, is hereby vacated and substituted with this opinion.

{¶ 2} Defendant-appellant, Demetrius H. Carter ("Carter"), appeals his guilty verdict and sentence, and ask this court to reverse his conviction and remand to the trial court for a new trial. We affirm.

{¶ 3} Carter was found guilty of one count of rape, a first-degree felony in violation of R.C. 2907.02(A)(2) ; three counts of kidnapping, first-degree felonies in violation of R.C. 2905.01(A)(4) ; and two counts of gross sexual imposition, fourth-degree felonies in violation of R.C. 2907.05(A)(1). He was sentenced to a total of eight years and required to register as a Tier III sex offender.

I. Facts

{¶ 4} B.C., the daughter of Carter, accused Carter of kidnapping, rape, and forcing her to have unwanted sexual conduct with him. B.C. testified that her father, Carter, began making sexual advances towards her when she was in the seventh grade. B.C. recalled one moment when she and Carter were lying next to each other watching movies. Carter told B.C. that he was cold and requested that she move closer to him. When B.C. moved closer to him, she felt Carter's pelvis poking her. Carter continued to push his pelvis closer to B.C., and his actions made B.C. feel confused and as if she could not get up and walk away.

{¶ 5} Once Carter moved out of the family home, as a result of divorce from B.C.'s mother, B.C. would see Carter at his sister's house. One occasion when B.C. was visiting Carter at Carter's sister's house, B.C. awoke to Carter hugging her around the waist. Carter also began pushing his pelvis against B.C. and groping her chest. Then Carter used his hand to rub B.C.'s vagina. B.C. testified that Carter rubbed the inside and outside of her vagina with his fingers. B.C. felt as if she could not get up and walk away from Carter.

{¶ 6} Another incident took place at Carter's sister's new home where B.C. and Carter were sleeping on the floor. B.C. awoke to Carter rubbing her breasts. Carter then told B.C. that he loved her. The next morning Carter told B.C. that they needed to stop having sexual contact, but he continued. B.C. did not feel as if she could get away from Carter while he was touching her.

{¶ 7} B.C. also visited Carter at Carter's father's home. During a visit, B.C. woke to Carter holding her around the waist while pushing his pelvis against her. B.C. tried to move away from him, but Carter pulled her closer. Carter began groping B.C.'s breast and then pulled her pants down. Carter got out of the bed, and B.C. heard him open a plastic wrapper. Carter then came back to the bed and laid down behind B.C. B.C. felt Carter touch her vagina both inside and out, but was unsure of what he was touching her with.

{¶ 8} B.C. sent her mother, S.C., a text message detailing the events of Carter touching her. S.C. went to the police, and B.C. was first interviewed by Lauren Hennessey ("Hennessey"), a social service worker with the Department of Children and Family Services. During her testimony, the state asked her, "When you met with [B.C.], what types of information is it important for you to learn for you to make the referrals that you are tasked with making?" (Tr. 323.) Hennessey responded by stating, "[s]o we make referrals typically, you know, when there's credible, consistent disclosures, which hers was. And, you know, she was seeking—the family was seeking medical—not medical, mental health treatment as well because of what had happened." (Tr. 323.)

{¶ 9} B.C.'s case was referred to Julie Loyke ("Loyke"), a certified pediatric nurse practitioner who performs non-acute sexual abuse examinations for the Cleveland Care Clinic. Loyke testified as to her experiences practicing as a Sexual Assault Nurse Examiner ("SANE"). Loyke described her conversation with B.C., and the procedures used to interview and examine B.C.

{¶ 10} At the end of the trial, Carter was found guilty and sentenced to eight years in prison. Carter filed this timely appeal arguing six assignments of error for our review:

I. The [s]tate failed to present sufficient evidence of the offenses charged;

II. The appellant's convictions are against the manifest weight of the evidence;

III. The trial court erred in allowing the [s]tate's witness to opine regarding the appellant's guilt, in violation of the Ohio Rules of Evidence, the right to a fair trial, and the Due Process Clause of the Fourteenth Amendment of the United States Constitution;

IV. Appellant was denied due process and a fair and impartial trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article I, Section 16 of the Ohio Constitution based on prosecutorial misconduct;

V. The appellant was denied effective assistance of counsel in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution ; and

VI. The trial court erred in allowing the admission of the accuser's text message allegation which was offered for the sole purpose of demonstrating a prior consistent message without first showing recent fabrication, and which denied the appellant due process and the right to a fair trial.

II. Sufficiency of Evidence

A. Standard of Review

{¶ 11} Claiming insufficient evidence,

raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing a sufficiency challenge, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

State v. Herring , 8th Dist., 2017-Ohio-743, 86 N.E.3d 133, ¶ 16.

B. Law and Analysis

{¶ 12} Carter argues that the state failed to present sufficient evidence of the offenses charged.

The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598 [2009 WL 2186608], ¶ 13. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. Id. at ¶ 12. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

State v. Pridgett , 8th Dist. Cuyahoga No. 101823, 2016-Ohio-687, [2016 WL 762671], ¶ 15.

{¶ 13} Carter was convicted of one count of rape, in violation of R.C. 2907.02(A)(2) ; three counts of kidnapping, in violation of R.C. 2905.01(A)(4) ; and two counts of gross sexual imposition, in violation of R.C. 2907.05(A)(1). The statutes read as follows:

No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.

R.C. 2907.02(A)(2).

No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against the victim's will.

R.C. 2905.01(A)(4).

No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies: The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force.

R.C. 2907.05(A)(1).

{¶ 14} Carter argues that the evidence was insufficient to support his conviction of rape because B.C. could not testify with certainty that Carter used his fingers to penetrate her vagina. However, B.C. did testify that Carter was rubbing her vagina both on the outside and inside. (Tr. 227.) When asked if she felt like she could walk away or make it stop, B.C. replied "no." (Tr. 228.) Because of the parent-child relationship that existed between Carter and B.C., Carter did not have to physically force B.C. to engage in sexual intercourse. "In certain scenarios, especially those involving parent-child relationships, a child may feel compelled or psychologically coerced into submitting to her aggressor for reasons other than an overt show of force or threats of force." State v. Weems , 8th Dist. Cuyahoga No. 102954, 2016-Ohio-701, 2016 WL 763101, ¶ 25. Citing State v. Jordan , 8th Dist., 2017-Ohio-381, 83 N.E.3d 364, ¶ 14. We find that B.C.'s testimony is sufficient evidence to conclude that Carter did commit rape.

{¶ 15} Carter also contends that the evidence was insufficient to support his kidnapping conviction. However, Carter took B.C. from her home to his father's and sister's homes. On two occasions at Carter's sister's home, B.C. woke up to Carter groping her breasts,...