State v. Colonel

Docket Number23CA1168
Decision Date25 October 2023
Citation2023 Ohio 3945
PartiesSTATE OF OHIO, Plaintiff-Appellee, v. DARRYLL COLONEL, Defendant-Appellant.
CourtOhio Court of Appeals

Brian T. Goldberg, Cincinnati, Ohio, for appellant.

David Kelley, Adams County Prosecuting Attorney, and Aaron H Haslam, Mark R. Weaver, and Ryan M. Stubenrauch, Assistant Prosecuting Attorneys, West Union, Ohio, for appellee.

DECISION AND JUDGMENT ENTRY

Michael D. Hess, Judge

{¶1} Darryll Colonel appeals his conviction for rape and gross sexual imposition. For his first assignment of error, Colonel contends that the trial court erred when it allowed his videotaped confession that he committed gross sexual imposition to be played for the jury because the state failed to produce independent evidence of the corpus delicti of gross sexual imposition. However, the state presented some evidence outside of his confession that tended to prove some material element of gross sexual imposition. It presented evidence that Colonel laid down in the victim's bed removed his pants, and engaged in a variety of sexualized behaviors while the victim was significantly impaired on medication. We overrule Colonel's first assignment of error.

{¶2} Second, Colonel contends that the trial court committed plain error when it allowed the expert to give her opinion on the veracity of the victim's statement. He argues that the expert's testimony that the victim's statements were consistent with inappropriate sexual conduct was vouching. We find that according to the trial transcript, the expert never gave her opinion about the victim's statement. However, assuming the jury construed the expert's testimony in such a manner, we find that it was permissible bolstering, not vouching. We overrule Colonel's second assignment of error.

{¶3} In his third assignment of error, Colonel contends that the trial court committed plain error by allowing the state to play the victim's interview from the treatment center in its entirety because only a portion of the interview was for medical diagnosis or treatment. We find that it was part of Colonel's trial counsel's trial strategy to ask the victim about each of the topics that Colonel claims should have been redacted from her interview. Because Colonel elicited this testimony directly from E.V. at trial, any redactions of them from the interview would have had no impact on the trial outcome. Regardless of whether they were redacted from the interview, the jury would have learned of these topics from Colonel's cross examination of the victim. We overrule Colonel's third assignment of error.

{¶4} Fourth, Colonel contends that the trial court committed plain error when it failed to include the definition of the phrase "know or have reasonable cause to believe" in its jury instructions as it relates to the element that he knew or had reasonable cause to believe E.V. was substantially impaired. We find that "know or have reasonable cause to believe" is not a technical phrase nor does it have a meaning not generally understood by the average juror. The trial court instructed the jury on all elements that must be proved to establish the crimes and it did not err when it did not define a common-sense phrase. We overrule Colonel's fourth assignment of error.

{¶5} In his fifth assignment of error, Colonel contends that his convictions for rape and gross sexual imposition were not supported by sufficient evidence and were against the manifest weight of the evidence. He argues that there was insufficient evidence that the victim was substantially impaired. We find that Colonel's convictions are supported by sufficient evidence and are not against the manifest weight of the evidence. The state presented sufficient evidence through the testimony of the victim and Colonel's confession to allow any rational trier of fact to find all the essential elements of the crime proven beyond a reasonable doubt. And after reviewing the entire record, we find that the jury did not clearly lose its way or create a miscarriage of justice such that reversal of the conviction is necessary. We overrule his fifth assignment of error.

{¶6} In his sixth assignment of error, Colonel contends that he received ineffective assistance of counsel because his trial attorney did not object to any of the matters he assigned as his first four assignments of error. However, we find no merit to any of those assignments of error and the law does not require counsel to take a futile act. We overrule Colonel's sixth assignment of error.

{¶7} Finally, Colonel contends that the cumulative effect of his trial counsel's errors denied him of a fair trial. Because we find no merit to any of Colonel's assigned errors, we reject his argument that the cumulative error doctrine requires a new trial. We overrule Colonel's seventh assignment of error.

{¶8} We affirm the trial court's judgment.

I. FACTS AND PROCEDURAL HISTORY

{¶9} In January 2022, an Adams County Grand Jury indicted Colonel with one count of rape in violation of R.C. 2907.02(A)(1)(c), a first-degree felony, and one count of gross sexual imposition in violation of R.C. 2907.05(A)(5), a fourth-degree felony. Colonel pleaded not guilty.

{¶10} The case proceeded to a jury trial which produced the following evidence. The victim E.V. testified that in November and December 2021 she was 16 years old and living in West Union, Ohio with her aunt, two male cousins both in their late 20s, and a pet dog. One of the cousins she was living with was the defendant Darryll Colonel. On December 17, 2021, E.V. had been sick for three days, her whole body was aching, and she was taking a medication, Seroquel, which made it difficult for her to concentrate or stay awake. She testified that Seroquel made her tired, drowsy, and want to go to bed when she took it. She was "pretty much out of it" most of the day. Her aunt and her other male cousin were out of the house at work. E.V. and Darryll Colonel had been playing video games in the living room with another relative, but E.V. could not stay awake and fell asleep on the living room floor. She woke up at about 6:45 p.m. and went to her bedroom, which was next to the living room.

{¶11} E.V. testified that after she went into her bedroom, she took her glasses off and laid down in bed. Colonel followed her into her room, told her to scoot towards the wall, and laid down in the bed beside her. E.V. testified that it was unusual for Colonel to lay down in her bed because he had his own bedroom. E.V. fell back asleep, but shortly thereafter she woke up to the sounds of Colonel moving the trashcan away from her bedroom door so that the door would close completely. E.V. asked Colonel what he was doing because he knew she liked to sleep with the bedroom door open. Colonel told her he was making the room darker. E.V. testified that she was feeling very tired. E.V. fell in and out of sleep twice while Colonel was in her room; when she was awake, "I was like up but not aware of what was going on." The dog started scratching at the door to be let inside the bedroom. Colonel got up to open the door to let in the dog. E.V. testified that when he got up to open the door for the dog, she saw from the flash of light from the door opening that Colonel had removed his pants. E.V. testified that after he let the dog in, Colonel got back into bed and said, "If you help me with something, I'll help you with something." E.V. did not know what Colonel meant and when she asked him, he did not respond.

{¶12} E.V. testified that she thinks she must have fallen back to sleep because she did not remember anything more for about the next ten minutes. At some point Colonel told her to kiss him and she said, "no." After she told him no, he just laid there. Then he told her to take her pants off and when she refused, Colonel began forcing her pants down. E.V. testified that at one point she woke up and Colonel had inserted his finger into her vagina. She told him he was hurting her and he responded by being more forceful. E.V. testified that she felt scared and believed that Colonel would hurt her more if she did not listen to him. To leave the room, E.V. would have had to go over the top of Colonel to get out of bed and out of the room. At some point E.V. remembered telling Colonel that she needed to use the bathroom. Colonel removed his finger for a few minutes but then reinserted it into her vagina. E.V. also testified that at some point Colonel brought the dog up to her, held its head down by her vagina, and told the dog to lick her vagina. E.V. testified that she fell back to sleep for a while and then woke up to a very sharp pain in her vagina, a wet and coldness, and a feeling of something "release." At that point E.V. again told Colonel she needed to use the bathroom and then got up, left the room, and went into the bathroom. E.V. said it was approximately 8:45 p.m. when she left her bedroom to go to the bathroom. While in the bathroom, E.V. texted her sister and told her that she needed to talk to her urgently. Her sister did not respond immediately. When E.V. left the bathroom, Colonel was standing in the living room staring at her. E.V. went back into her bedroom, closed her door, turned on her light, laid down on her bed, and got her sister on the phone. Colonel came into her room and told her, "I'm sorry, I don't know what came upon me" and then he left her room again. E.V. testified that Colonel did not touch her anywhere other than her vagina.

{¶13} Cecilia Hicks testified that she was employed for 16 years as a social worker and forensic interviewer with the Mayerson Center, a child advocacy center at the Cincinnati Children's Hospital Medical Center. Hicks interviewed E.V. to assess her for...

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