State v. Gillispie, 2009 Ohio 3640 (Ohio App. 7/24/2009)

• Citation: 2009 Ohio 3640
• Decision Date: 24 July 2009
• Docket Number: C.A. Case No. 22912.,C.A. Case No. 22877.
• Parties: State of Ohio, Plaintiff-Appellee, v. Roger Dean Gillispie, Defendant-Appellant.
• Court: United States Court of Appeals (Ohio)

Page 1

2009 Ohio 3640

State of Ohio, Plaintiff-Appellee, v. Roger Dean Gillispie, Defendant-Appellant.

C.A. Case No. 22877.

C.A. Case No. 22912.

Court of Appeals of Ohio, Montgomery County.

Rendered on July 24, 2009.

Criminal appeal from Common Pleas Court, T.C. No. 1990-CR-2667.

Carley J. Ingram, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W. Third Street, 5^th Floor, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee.

Jim Petro, Atty. Reg. No. 0022096, 107 S. High Street, Columbus, Ohio 43215 and Mark Godsey, Atty. Reg. No. 0074484, University of Cincinnati College of Law, P. O. Box 210040, Cincinnati, Ohio 45221, Attorneys for Defendant-Appellant.

OPINION

FROELICH, J.

{¶ 1} In February 1991, Roger Dean Gillispie was convicted by a jury of nine counts of rape, three counts of kidnapping, three counts of gross sexual imposition, and one count of aggravated robbery. The rape, kidnapping and aggravated robbery counts each carried a firearm specification. The trial court imposed an aggregate sentence of a minimum of 22 years to a maximum of 56 years in prison.

{¶ 2} Gillispie now appeals from two judgments of the Montgomery County Court of Common Pleas. The first judgment denied his petition for postconviction relief and overruled his motion for a new trial (CA 22877). The second judgment denied his motion to supplement the record and his motion for reconsideration of the denial of his motion for a new trial (CA 22912). These appeals have been consolidated. For the following reasons, the first judgment will be affirmed in part, reversed in part, and remanded for further proceedings. The second judgment will be affirmed.

I

{¶ 3} Gillispie's convictions stem from two separate sexual assaults in August 1988.

{¶ 4} On August 5, 1988, in the early to mid-afternoon, S.C. drove alone to a Rite-Aid drug store on North Dixie Drive in Harrison Township to purchase some hand lotion. After making the purchase, she returned to her car. As she prepared to drive away, a man jumped into the front passenger seat and pointed a chrome handgun at her head. The assailant told S.C. to do as he said or he would shoot her.

{¶ 5} The assailant directed S.C. to drive behind a vacant building and park next to a dumpster. After she stopped the car, the man took the keys and threw them under the front passenger seat. He then exposed and fondled S.C.'s breasts, instructed S.C. to unfasten her pants, unzipped his own pants, and forced her to perform oral sex on him. S.C. was instructed to spit the ejaculate into a paper bag. After this, S.C. began to ask the assailant questions to stall him from making a further attack. During the questioning, he said his name was "Roger," that he was a security guard, and that he had been sexually molested as a child. The man stated that he wanted S.C. to drive him to Columbus. S.C. asked her assailant if she could smoke a cigarette. The man permitted it and lit one for himself, although S.C. did not recall seeing him smoke it. Afterwards, the assailant got out of S.C's car and told S.C. to exit. Instead, S.C. grabbed the keys from beneath the seat and drove away.

{¶ 6} S.C. did not immediately contact the police concerning the rape. Shortly after the incident, S.C. read an article in the newspaper concerning the rape of two other women in the Miami Township area. The article prompted S.C. to report to the Miami Township police that she too had been attacked and raped. Approximately two weeks after the assault, S.C. was interviewed by Miami Township Detective Gary Bailey and a composite picture of the suspect was developed.

{¶ 7} S.C. described the assailant as approximately six feet tall, 200 pounds, stocky build with short, light brown hair and mustache, light blue eyes, tanned skin, and strong odor of cologne. S.C. stated that he wore a button down shirt with the top buttons undone and he wore a gold chain with a medallion.

{¶ 8} On Saturday, August 20, 1988, at around 7 p.m., twin sisters C.W. and B.W. were preparing to leave from the parking lot of the Best Products store near the Dayton Mall when a man claiming to be a store security guard pushed his way into the back seat of their car and brandished a small silver handgun. The assailant thrust the gun into B.W.'s ribs and directed her to drive away from the lot. As they drove, the man asked C.W. to light him a cigarette; the women did not remember his smoking it, noting that they did not smell smoke. The assailant also told them that he wanted a ride to Columbus.

{¶ 9} The assailant directed B.W. to a secluded area near a bridge, ordered the women from the car, and forced them at gunpoint into the woods to a fallen log. Once there, the assailant forced the twins to expose their breasts, which he fondled with his hands and the pistol. In addition, the assailant forced each woman to perform oral sex on him three times individually and once together. The women testified that, during the course of the attack, the assailant talked frequently and said, among other things, that his name was "Roger," that he had been sexually molested as a child by his grandfather, that he was from Columbus and Texas, and that his job was killing people for $1,000.

{¶ 10} The assailant then blindfolded the women and led them back to their car and placed them on the floor of the back seat. He drove them back to the Best Products parking lot where he took $83 from their purses. The assailant told the women to lie on the floor through two songs on the radio or he would kill them. The women did as they were told and the man escaped.

{¶ 11} Later that evening, the women reported the incident to their parents who contacted the Miami Township police. The police requested that the women come to the police station. Once there, the women were separately interviewed regarding the incident and each was taken to a local hospital for a throat culture. The next day, the women were again interviewed by the police and each assisted in developing a joint composite picture of the offender. The twins described the assailant as a man in his early twenties, 6'3" tall, approximately 250 pounds, with reddish-brown hair that was short on top and over the ears but longer in the back, a mustache, a wide, dark-tanned face, and a low authoritative voice. C.W. and B.W. indicated that their assailant wore sunglasses during the incident.

{¶ 12} In June 1990, Detective Scott Moore of the Miami Township Police Department took over the investigations. In July 1990, C.W. and B.W. were contacted by Moore and asked to come to the police station to view a photo spread containing six photographs. The two women separately and independently identified Gillispie as their attacker. A few weeks later, S.C. was contacted by Moore. He showed S.C. a photo spread of the same six photographs. S.C. also identified Gillispie's photograph as her assailant.

{¶ 13} The photograph of Gillispie in the photo spread shown to S.C. and the sisters was provided to the police by security personnel from Gillispie's employer, General Motors. In 1988, a security supervisor at GM had seen the composites on the news and believed that they resembled Gillispie. He reported his belief to the chief of plant security and, a year later, to a new chief of plant security. At that time, GM security personnel reported the resemblance to the police and provided the security identification cards of Gillispie and four other individuals who resembled the composites. G.M. also provided police with information that Gillispie did not work on August 5, 1988, and August 20, 1988, the days the assaults took place.

{¶ 14} Moore used the photograph from Gillispie's security identification card in the photo spread. Gillispie's photograph depicted his face somewhat closer and larger than the five other photographs and, unlike the other five photographs in the photo lineup, had a matte finish.

{¶ 15} At trial, Gillispie claimed that he had an alibi for the times of the rapes. He asserted that, on August 5, 1988, he was with friends, and that he was camping with friends in Kentucky during the weekend of August 20, 1988.

II

{¶ 16} In the fall of 1990, Gillispie was charged with multiple counts of rape, kidnapping, gross sexual imposition, and aggravated robbery, including fifteen firearm specifications. A jury trial was held in February 1991, and he was found guilty on all counts of rape, kidnapping, and gross sexual imposition, and one count of aggravated robbery. Firearm specifications were found on the rape, kidnapping and aggravated robbery charges. Gillispie was acquitted of two additional counts of aggravated robbery.

{¶ 17} Shortly after the trial and before sentencing, one pubic hair and seven head hairs that were collected from C.W. and B.W.'s clothing were found at the Miami Valley Regional Crime Laboratory ("MVRCL"). The hairs were examined microscopically by Denise Rankin of MVRCL and Larry Dehus of Law-Science Technologies, who was retained by Gillispie. Some of the hairs were similar to standards provided by B.W. and C.W.; none of the hairs was similar to the standards provided by Gillispie.

{¶ 18} Based on the hair analyses, Gillispie moved for and was granted a new trial. In June 1991, a second jury found Gillispie guilty of all charges and firearm specifications. The trial court sentenced Gillispie accordingly.

{¶ 19} Gillispie moved for a judgment of acquittal and for a new trial, arguing that the witness identifications were not credible, that the court erred in giving the jury a modified Allen charge,¹ and that the State presented inadmissible evidence. In a separate motion for a new trial, Gillispie also alleged juror misconduct. The trial court overruled the motions for a new trial. In a consolidated appeal, we affirmed Gillispie's conviction and the denial of his motions for a new trial. State v. Gillispie (Jan. 21, 1993), Montgomery App. Nos. 12941 and 13585 ("Gillispie I").

{¶ 20} In the eighteen...