State v. Dennis
| Decision Date | 22 June 2017 |
| Docket Number | No. 104742,104742 |
| Citation | 93 N.E.3d 277,2017 Ohio 4437 |
| Parties | STATE of Ohio, Plaintiff–Appellee v. Reeco DENNIS, Defendant–Appellant |
| Court | Ohio Court of Appeals |
Myriam A. Miranda, P.O. Box 40222, Bay Village, Ohio 44140, ATTORNEY FOR APPELLANT
Michael C. O'Malley, Cuyahoga County Prosecutor, By: Marcus A. Henry, Assistant Prosecuting Attorney, Justice Center–8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
BEFORE: S. Gallagher, J., Stewart, P.J., and Jones, J.
JOURNAL ENTRY AND OPINION
{¶ 1} Reeco Dennis appeals his convictions for rape and kidnapping, which involved an aggregate sentence of 19 years in prison. We affirm.
{¶ 2} In 1996, the victim was walking down a street late at night after she had finished her shift at work. Dennis approached, pointed a gun at the back of her head, and ordered the victim to march to an empty field away from the street. It was never determined whether the gun was real, and the victim only had a brief opportunity to see Dennis's face. Once in the field, Dennis made the victim undo her pants, and he proceeded to rape her for several minutes. She was unsure whether Dennis ejaculated, but immediately after Dennis absconded, the victim sought medical treatment.
{¶ 3} The primary results of DNA testing originally identified the victim's then boyfriend. There were two fluid samples, found on the waistband and the cuff of the victim's pants, containing a DNA profile from an unidentified contributor. Twenty years later, and within the statute of limitations, the state matched the DNA profile discovered in the two samples to Dennis. The victim had never met him. In the sample found in the waistband, Dennis could not be excluded as the contributor to an almost infinite degree of likelihood, but the sample from the pant cuff was not as definitive. According to the state's expert, results of the second sample only "potentially" identified Dennis.
{¶ 4} After a jury trial, Dennis was found guilty of rape and kidnapping. The trial court imposed 11– and 8–year prison terms respectively and ordered Dennis to serve both sentences consecutive to each other and to another, unrelated prison term. This timely appeal followed in which Dennis advances eight assignments of error.
{¶ 5} In the first assignment of error, Dennis contends that the trial court erred in admitting the victim's medical records in violation of Evid.R. 403 because either the probative value is substantially outweighed by the unfair prejudice (exclusion mandatory) or the probative value is substantially outweighed by considerations of undue delay or needless presentation of cumulative evidence (exclusion discretionary). Further, Dennis claims that the medical records were used in violation of Evid.R. 801 to bolster the victim's testimony about actually being raped; violated the Confrontation Clause under Crawford v. Washington , 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ; or were unauthenticated.
{¶ 6} The sole argument presented in this claimed error, aside from the conclusory references to the record, the rules of evidence, and Crawford , was the belief that the
{¶ 7} The trial court has broad discretion in the admission or exclusion of evidence, and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, an appellate court should be slow to interfere. State v. Hancock , 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 122. Even if any error can be shown, appellate courts must consider whether the introduction of the evidence was harmless error under Crim.R. 52(A). State v. Morris , 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 29 ().
{¶ 8} If the medical records were irrelevant, as Dennis argues, then the introduction of the records cannot be deemed prejudicial—the records had no bearing on his guilt or innocence. If, on the other hand, we consider the medical records as being relevant and agree that the records were not authenticated, Dennis bears the burden of demonstrating that the admission of the evidence prejudiced his right to a fair trial. Dennis has not met this burden. Instead, he offered the bare assertion that the introduction of the evidence was "prejudicial." It must be remembered that the victim did not know Dennis, so there are no references in the medical records to an identification, which was the only dispute at trial—there was no dispute that a rape occurred, only whether Dennis was the offender. Even if we assumed error occurred, Dennis has not demonstrated anything other than the harmless error. Crim.R. 52(A). We overrule the first assignment of error.
{¶ 9} In the second assignment of error, Dennis claims the trial court erred by not instructing the jury on the lesser included offense of gross sexual imposition because in the direct examination, the victim testified that the "penetration" occurred in the "outer side of my vagina." Dennis believes this conflicts with a later clarifying statement that the victim was vaginally penetrated.
{¶ 10} A trial court is provided the discretion to determine whether the evidence adduced at trial was sufficient to require an instruction. State v. Fulmer , 117 Ohio St.3d 319, 2008-Ohio-936, 883 N.E.2d 1052, ¶ 72. Jury instructions must be viewed as a whole to determine whether they contain prejudicial error. State v. Fields , 13 Ohio App.3d 433, 436, 469 N.E.2d 939 (8th Dist. 1984). "Sexual conduct" is defined to include "the insertion, however slight , of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another." (Emphasis added.) R.C. 2907.01(A). Even if we only considered the victim's initial testimony, the victim testified to being vaginally penetrated. That Dennis believes the testimony demonstrated some lesser degree of penetration is irrelevant. There is no evidence that the conduct in this case merely constituted gross sexual imposition under R.C. 2907.05 (sexual contact) and not rape under R.C. 2907.02 (sexual conduct). The jury instruction on gross sexual imposition was not required based on the evidence presented. We overrule the second assignment of error.
{¶ 11} In the third and fourth assignments of error, Dennis argues that the findings of guilt are either unsupported by sufficient evidence or are against the manifest weight of the evidence. Although the standards of review differ, Dennis presented the same general arguments—that the evidence presented by the state was incredible.
{¶ 12} A claim of 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. We cannot review the credibility of the evidence under the sufficiency of the evidence standard of review. Therefore, the third assignment of error is overruled.
{¶ 13} When reviewing a claim challenging the manifest weight of the evidence, the court, reviewing the entire record, must weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
Thompkins at 387, 678 N.E.2d 541. Reversing a conviction as being against the manifest weight of the evidence should be reserved for only the exceptional case in which the evidence weighs heavily against the conviction. Id.
{¶ 14} Dennis highlights several credibility concerns: (1) the victim was unable to identify her assailant; (2) the rape kit was tested by an independent contractor in 2004 and not the state agency; (3) the numbering of the original evidence bags did not match; (4) the state's expert tested the determinative sample, which identified Dennis, twice because the first test identified a different person; and (5) the victim was somehow incredible because Dennis's DNA was found on the victim's pants and not on her underclothing. All of these credibility concerns, however, were explored at trial.
{¶ 15} Further, this is not the exceptional case in which the evidence weighs heavily against the conviction. The jury was free to consider the arguments as presented, and from the test results of at least one of the DNA samples, the state's expert concluded that the probability that Dennis was not the contributor was infinitesimally small. In consideration of the fact that both Dennis and the victim agreed that neither knew the other, this evidence could be viewed as dispositive by a rational trier of fact. We overrule the fourth assignment of error.
{¶ 16} In the fifth and sixth assignments of error, Dennis claims he was denied the effective assistance of counsel because his trial counsel failed to file a motion to dismiss based on preindictment delay and failed to request a ruling on a motion for independent forensic testing that was filed. In the alternative to the latter argument, Dennis claims that the trial court erred by not granting that motion.
{¶ 17} In order to substantiate a...
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