State v. Dailey

Decision Date10 October 2018
Docket NumberCase No. 18CA1059
Citation2018 Ohio 4315
PartiesSTATE OF OHIO, Plaintiff-Appellee, v. JONATHAN DAILEY, Defendant-Appellant.
CourtOhio Court of Appeals

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Timothy Young, Ohio Public Defender, and Craig M. Jaquith, Assistant Ohio Public Defender, Columbus, Ohio, for Appellant.1

David Kelley, Adams County Prosecuting Attorney, and Kris Blanton, Adams County Assistant Prosecuting Attorney, West Union, Ohio, for Appellant.

CRIMINAL CASE FROM COMMON PLEAS COURT

ABELE, J.

{¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of conviction and sentence. The trial court found Jonathan Dailey, defendant below and appellant herein, guilty of: (1) rape in violation of R.C. 2907.02(A)(1)(c); and (2) sexual battery in violation of R.C. 2907.03(A)(2). Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED WHEN IT BARRED EVIDENCE THAT C.B.'S ALLEGATIONS WERE FABRICATED."
SECOND ASSIGNMENT OF ERROR:
"MR. DAILEY'S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS."
THIRD ASSIGNMENT OF ERROR:
"PROSECUTORIAL MISCONDUCT DENIED MR. DAILEY A FAIR TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 10 AND 16, OF THE OHIO CONSTITUTION."
FOURTH ASSIGNMENT OF ERROR:
"MR. DAILEY'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION."
FIFTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO PROPERLY MERGE THE OFFENSES OF RAPE AND SEXUAL BATTERY."

{¶ 2} During the evening hours of November 12, 2016 through the early morning of November 13, 2016, appellant, C.B. (the victim), and other friends consumed large amounts of alcohol. Throughout the night, C.B. drank eight "Mike's Harder Lemonade," as well as a few beers and a "fruity" alcoholic beverage. C.B. eventually passed out in appellant's bedroom. Later, C.B. became conscious that appellant was having sexual intercourse with her. Afterwards, C.B. reported the incident to law enforcement and medical personnel performed a rape kit.

{¶ 3} An Adams County grand jury subsequently returned an indictment that charged appellant with two counts of rape, felonious assault, and sexual battery. Appellant entered not guilty pleas.

{¶ 4} On October 30, 2017, the trial court held a bench trial. C.B. testified first and explained that appellant had been like a brother to her and that she never expected appellant would engage in sexual intercourse with her. C.B. admitted that she was quite intoxicated, but denied that she consented to having intercourse. C.B. related that on the night in question, she had consumed large quantities of alcohol and ended the evening at appellant's residence. She stated that she went into appellant's bedroom, alone, to rest and later "pass[ed] out." C.B. attested that her next recollection was appellant on top of her, and she noted that both her pants and underwear had been removed. She explained that she was "drunk" and "so confused and like shocked" that she "didn't know what was going on." C.B. indicated that she became aware that appellant "put his penis in [her]," but she is uncertain "how long it went on." C.B. stated that at some point, appellant left the room, returned, and had sex with her again.

{¶ 5} C.B. testified that she believes that appellant thought she was passed out when he had sex with her. C.B. explained that she pretended to be asleep in the hope that appellant would stop. Once appellant appeared to be sleeping, C.B. then left appellant's house and called her mother. Shortly thereafter, C.B. went to the hospital and had a rape kit performed.

{¶ 6} C.B. additionally related that she sought counseling because the incident has affected her "daily life," she thinks "about it all the time," she does not "sleep well," she has "flashbacks of that night," she had difficulty concentrating in school, and that she is "scared to be alone." C.B. indicated that she believes she continues to need counseling, but stated that she has not had time to engage in further counseling.

{¶ 7} Dakota Vincent testified that he had been with both appellant and C.B. during the night of the incident, but he did not witness the alleged sexual assault. Vincent nevertheless observed that C.B. appeared "pretty drunk" that night. Vincent explained that C.B. drank between six and eight Mike's Hard Lemonade and then drank one beer. Vincent further related that although he did not witness the assault, Vincent noticed a change in C.B.'s behavior following the night in question. He explained that after the incident, C.B. "wouldn't stay at her house," but instead, she "stay[ed] at her mom's house or had to be around somebody." Vincent stated that C.B. also "quit drinking" "[f]or a few months" and cried more often than before that night.

{¶ 8} Anthony Grey similarly testified that C.B. appeared drunk on the night of the alleged sexual assault.

{¶ 9} Adams County Investigator Kenneth Dick explained that he investigated C.B.'s complaint. As part of his investigation, he interviewed appellant and he eventually admitted that he and C.B. had sex, but denied that he raped her. Appellant claimed that C.B. initiated sexual contact with him and that appellant simply responded to her advances. Appellant additionally emphasized that they both were drunk. Appellant specifically stated that C.B. "[w]as pretty wasted."

{¶ 10} John Roflow, C.B.'s counselor, testified that in March 2017, he diagnosed C.B. with post-traumatic stress disorder (PTSD). Roflow stated that he had only a single encounter with C.B. and that she did not follow up for further counseling.

{¶ 11} At this point, the state rested its case and appellant moved for a judgment of acquittal. The trial court granted the motion with respect to the felonious assault charge, but denied it as to the remaining counts.

{¶ 12} In his defense, appellant attempted to demonstrate that C.B. fabricated the rape allegations. Carissa Miller testified that in early June 2017, she and a few friends were at Hunter Conaway's house. Miller claimed that C.B. called Conaway and informed him that C.B. needed a ride. Miller explained that Conaway and C.B.'s conversation became adversarial, and C.B. proclaimed that "she should've set Hunter up."

{¶ 13} The state objected to Miller's statement and asserted that the defense could not use extrinsic evidence to impeach C.B. The trial court sustained the objection.

{¶ 14} On December 28, 2017, the trial court found appellant guilty of rape and sexual battery. The court, however, found appellant not guilty of the second count of rape and granted appellant's motion for a judgment of acquittal with respect to the felonious assault charge. Later, the trial court sentenced appellant to serve four years in prison for the rape offense and thirty months for the sexual battery offense. The court found that the offenses are allied offenses of similar import and stated that the terms of incarceration are "merged and sentence is imposed [for the rape offense] for a total mandatory term of four (4) years." This appeal followed.

I

{¶ 15} In his first assignment of error, appellant asserts that the trial court abused its discretion by excluding Miller's testimony that she heard C.B. tell Conaway that C.B. should have "set up" Conaway, instead of appellant. Appellant asserts that the trial court failed to consider that Evid.R. 616(A) permits extrinsic evidence to establish that a witness has "any motive to misrepresent." Appellant contends that Miller's testimony documents that C.B. had a "motive to misrepresent." Appellant agrees that the record does not indicate what exactly C.B. had to gain from accusing appellant, but claims that "she unmistakably implied to a third party-after the indictment-that [appellant] did not rape her." Appellant argues that C.B. "had some ulterior motive when she accused [appellant] of raping her," and posits that if the trial court had admitted Miller's testimony, the defense would have been able to undermine C.B.'s credibility.

A

{¶ 16} "'The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.'" State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 91, quoting State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus. Consequently, "a reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that created material prejudice." State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 66; accord State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 198. "An abuse of discretion is more than a mere error of law or judgment." State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 91; accord State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 75. Instead, "'[a] trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.'" State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, quoting State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. An abuse of discretion includes a situation in which a trial court did not engage in a "'sound reasoning process.'" State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Moreover, "[a]buse-of-discretion review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court." Darmond at ¶...

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