State v. Dorsey, 2008 Ohio 2515 (Ohio App. 5/23/2008)
| Decision Date | 23 May 2008 |
| Docket Number | No. 2007-CA-091.,2007-CA-091. |
| Parties | State of Ohio, Plaintiff-Appellee, v. Richard G. Dorsey, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Robert L. Becker, Prosecuting Attorney, 20 South Second Street, Newark, OH 43055, for Plaintiff-Appellee.
Dennis C. Belli, 844 South Front Street, Columbus, OH 43206-2543, for Defendant-Appellant.
Before: Hon. William B. Hoffman, P.J., Hon. W. Scott Gwin, J., Hon. John W. Wise, J.
{¶1} Defendant-appellant, Richard G. Dorsey, appeals from his conviction and sentence in the Licking County Court of Common Pleas on one count of rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(c) and three counts of Gross Sexual Imposition, felonies of the fourth degree, in violation of R.C. 2907.05(A)(5). The plaintiff appellee is the State of Ohio.
{¶2} Bonnie Parker was born on December 10, 1926. (1T. at 145). Prior to February 2006, Bonnie lived independently in an apartment in Pataskala. Bertha Dorsey, her daughter, and appellant, Bertha's husband, assumed the responsibility of providing her with needed care and assistance. Appellant took prescription medicine to her before and after work and often brought her dinner.
{¶3} On February 25, 2006, a Pataskala police officer took an offense report from Pamela Parker regarding her mother Bonnie Parker. The report was turned over to Detective Andy Waugh for investigation. After the detective interviewed Bonnie Parker, he sent her to Grant Hospital in Columbus for a forensic rape examination. In the meantime, the detective collected evidence from her apartment. He found a semen stain on a chair in the living room. DNA testing established that the semen belonged to appellant.
{¶4} At the hospital, Bonnie Parker told Kailey Mahan, a forensic nurse that two days earlier, her son-in-law, appellant, hugged her, grabbed her breasts and vagina, got on top of her, and engaged in vaginal intercourse with her. She stated that while this was happening, "I fought him." (1T. at 227). She further testified that Bonnie told her "he's been doing it to me for a while." (1T. at 228). Ms. Mahan noted a bruise on Bonnie's left inner thigh. (1T. at 230). She further noted redness in her right labia minora and tearing in the posterior fourchette. (1T. at 232). Additionally, Ms. Mahan noted "purple, red bruising...to the vaginal wall." (1T. at 236). Finally, Ms. Mahan noted that Bonnie had been experiencing pain and discomfort due to her injuries. (1T. at 238). Ms. Mahan noted the trauma was consistent with Bonnie Parker's verbal account.
{¶5} In December 2006, the Licking County grand jury returned an indictment charging appellant with three identically worded counts of rape and three identically worded counts of gross sexual imposition ("GSI"). Each count identified Bonnie Parker, his mother-in-law, as the alleged victim and averred that the offense conduct occurred "between the dates of February 2005 and February 22, 2006." Each count alleged that each offense was committed by force or threat of force "and/or" while Ms Parker's ability to consent to, or resist, sexual relations was substantially impaired due to her mental or physical condition, or advanced age.
{¶6} Bonnie Parker did not testify in the jury trial. The parties agreed before trial that she was incompetent to testify. (1T. at 57-64). The state relied on her forensic interview at the hospital as its evidence of a specific incident of sexual intercourse between her and the appellant.
{¶7} Bonnie Parker was eighty years old at the time of trial. (1T. at 136). She had been a patient of Dr. Ronald Vargo since 1993. (1T. at 98). Ms. Parker suffers from hypertension, diabetes, heart disease, and dementia. (Id. at 98). Dr. Vargo testified, "Multi-infarct dementia" is "a condition based on underlying medical conditions, hypertension, diabetes, heart disease, and basically causes hardening of the arteries in the brain, and over time the blood flow is choked off, so those areas of the brain just die away." (1T. at 99-100). Dr. Vargo testified that Bonnie began having memory problems in the year 2000. (Id. at 101; 126). By the year 2003, her problems progressed to the stage where medication was prescribed for her dementia. (Id. at 102; 126). Dr. Vargo defined dementia as a decline in intellectual function. (Id. at 118). The allegations in the case at bar occurred after Ms. Parker had been diagnosed with dementia. (Id. at 120). Interim Health Care, the agency proving in-home services to Ms. Parker was brought in the year 2005, after she had been released from the hospital. (Id. at 128). The diagnosis at that time was Alzheimer's/dementia. (Id. at 128). At that point, she was receiving two medications directed specifically to her dementia. (Id. at 129). Dr. Vargo testified on cross-examination that in his opinion once a person is diagnosed with dementia the person cannot be relied upon to make a decision concerning sexual relations. (Id. at 124; 131). He further testified that Ms. Parker was not able to consent to sexual relations. (Id. at 115; 117-118).
{¶8} Pamela Parker, Bonnie's daughter, testified during the time period alleged in the Indictment, her mother was "forgetting stuff" and was not able to take care of herself. (1T. at 143). She further testified that her mother suffered from Alzheimer's and dementia that was severe until she received treatment and in-home care. (1T. at 145-146).
{¶9} Appellant denied having sexual relations with Ms. Parker when interviewed by the police. (1T. at 185). He denied ever exposing himself to Ms. Parker. (Id. at 188). He further denied ever bathing, changing or showering Ms. Parker. (Id.). Appellant's semen was found on a chair in Ms. Parker's home. (1T. at 182). Ms. Parker had injuries consistent with having had sexual relations. (1T. at 225-241).
{¶10} In the defense case, Diane Ferguson, the case manager for the Passport Program at the Central Ohio Area Agency on Aging testified that Bonnie Parker qualified for home health care services, but did not meet the criteria for any specialized mental health treatment or assistance. (1T. at 260). On cross-examination, Ms. Ferguson testified that under the program's criteria dementia is classified as a physical disorder not as a mental disease. (Id. at 269).
{¶11} Appellant's wife and Bonnie Parker's son, James, testified and expressed their belief that appellant did not rape their mother.
{¶12} Appellant testified on his own behalf. He admitted having consensual sexual intercourse with his mother-in-law on three occasions during a two-week period in early 2005. Appellant was aware at the time that Bonnie had been diagnosed with dementia. (1T. at 307-308). He testified that Ms. Parker was the aggressor. (1T. at 310). He further admitted to having sex with his mother-in-law while she was bent over the chair in her living room. (1T. at 311). Appellant testified that his semen was found on the back of that chair because he masturbated while his mother-in-law was sleeping in the chair. (1T. at 312-313). Appellant further admitted that he had Bonnie rub his penis with lotion because "it was dry down there." (1T. at 316). He admitted to having his mother-in-law fondle him "six or seven times." (1T. at 316). He said that she knew what she was doing and that he did not take advantage of her mental state. (1T. at 305, 310). He denied raping her and denied having sexual relations with her on February 23, 2006. (1T. at 313-314). He denied committing any crimes, but acknowledged that from a moral standpoint, he knew that having sexual relations with his mother-in-law "wasn't right." (1T. at 320).
{¶13} At the conclusion of the state's case, the trial court directed an acquittal on two of the rape counts. (1T. at 255-256). The jury returned verdicts of guilty on the remaining counts, and rendered special findings stating that the state had failed to prove that appellant compelled his mother-in-law to submit to sexual conduct or sexual contact by force or threat of force. The court sentenced appellant to a maximum ten-year prison term on the rape conviction and concurrent one-year prison terms on the GSI convictions. (2T. at 414).
{¶14} Appellant timely appealed submitting the following six assignments of error for our consideration:
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