State v. Hardy, 2004 Ohio 56 (Ohio App. 1/8/2004)

• Decision Date: 08 January 2004
• Docket Number: No. 82620.,82620.
• Citation: State v. Hardy, 2004 Ohio 56 (Ohio App. 1/8/2004), 2004 Ohio 56 (Ohio App. 2004)
• Parties: State of Ohio Plaintiff-appellee v. Christopher Hardy Defendant-appellant.
• Court: Ohio Court of Appeals

Page 1

Unpublished Opinion

2004 Ohio 56

State of Ohio Plaintiff-appellee v. Christopher Hardy Defendant-appellant.

No. 82620.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

DATE OF ANNOUNCEMENT OF DECISION: January 8, 2004.

Criminal appeal from Cuyahoga County Common Pleas Court, Case No. CR-429576, Reversed and Remanded.

William D. Mason, Cuyahoga County Prosecutor, Mark Mahoney, Assistant, Justice Center, Courts Tower, 1200 Ontario Street, Cleveland, Ohio 44113, for Plaintiff-Appellee.

Paul Mancino, Jr., Attorney at Law, 75 Public Square, Suite 1016, Cleveland, Ohio 44113-2098, for defendant-Appellant.

JOURNAL ENTRY and OPINION

KENNETH A. ROCCO, A.J.

{¶1} Defendant-appellant, Christopher Hardy, appeals from his convictions for rape, kidnaping, and domestic violence, urging that the common pleas court violated his right to due process in various respects. We find the common pleas court erred by communicating with the jury outside of the defendant's presence. Therefore, we reverse and remand for a new trial.

Facts and Proceedings Below

{¶2} Hardy was charged in a seven count indictment filed October 28, 2002. Counts one and two charged him with rape, counts three and four charged him with kidnaping, count five charged him with abduction, count six, felonious assault, and count seven, domestic violence.

{¶3} The case proceeded to jury trial beginning January 27, 2003. At trial, the victim testified that she met the appellant in 1999. She moved in with him and his daughter in the Summer of 2001, and married him on October 12, 2001. She moved out of the marital home permanently on March 8, 2002. She stated that appellant had been controlling and abusive both before and after their marriage. The parties were divorced at the time of the trial.

{¶4} On Friday, April 5, 2002, appellant telephoned the victim to talk to her about reconciling. He also told her he had found a ring which belonged to her. She agreed to meet him. She went to his house at approximately 4:00 p.m. He pushed up against her, indicating that he wanted to have sexual relations, but she pushed him away. Appellant then went to pick up his daughter and his grandchild while the victim went to a tanning salon. They both returned to appellant's home and fixed dinner.

{¶5} After dinner, the victim and appellant went into his bedroom to watch a movie; the children were in another bedroom with the door closed. At the appellant's request, the victim changed into a long t-shirt, removing her undergarments at the same time. Appellant spoke to the victim about getting back together. She refused because "I knew it [physical abuse by appellant] wasn't going to stop." Appellant came over to her and got on top of her, indicating that he wanted to have sexual relations. The victim told the appellant that she did not want to, but appellant insisted that it was a wife's duty, and proceeded to engage in vaginal intercourse with her, holding her hands down. Afterward, they continued to watch the movie.

{¶6} Appellant became very angry with the victim because of her continued relationship with a female co-worker. He pushed her onto the bed. The victim told appellant she wanted to leave, but he pinned her arms down. He inserted three fingers in her vagina, caught onto the pubic bone and pulled her across the bed as she tried to get up. He then left the room to wash his hands.

{¶7} The victim got up and tried to leave. The appellant pulled her t-shirt off, pushed her down onto the bed and criticized her body. She continued to try to get up and get dressed, but appellant would not return her underwear or bra, and kept pushing her back onto the bed. He got behind her, grabbed her breasts and pulled her with them.

{¶8} Ultimately, the victim was able to get dressed. She tried to leave, but appellant grabbed her and would not let her go. When appellant left the room, she was able to leave. As she got into her car, appellant grabbed the door and screamed at her that he did not want her to leave. He climbed on the hood, threatened to break the window, and pushed his arm through a small opening in the window in an effort to reach her car keys. The following day, the victim went to the police. Photographs of the victim and of her car which were taken by the police were admitted into evidence.

{¶9} At the conclusion of the state's case, the court granted the defendant's motion for a directed verdict with respect to the felonious assault charge (count six of the indictment), finding that the victim had not suffered any serious injury. However, the court denied the motion with respect to the other charges.

{¶10} At the conclusion of the trial, the jury found appellant guilty of one count of rape (count two), one count of kidnaping (count four), and one count of domestic violence (count seven), but not guilty of separate charges of rape (count one), kidnaping (count 3), and abduction (count five).

Law and Analysis

{¶11} Appellant's eighth assignment of error is dispositive of this appeal, so we will address it first. In his eighth assignment of error, appellant asserts that the court erred by responding to jury questions outside the presence of the defendant. The record contains eight written communications from the jury to the court. Three of these were reports about the status of deliberations which did not require or receive a response. The court responded to another of the jurors' communications in open court, by reading them a Howard charge in the presence of both defense counsel and the defendant.

{¶12} The court responded to several other jury communications in writing; the record contains no indication that the judge consulted with the parties before she gave the jury her response. Communications between the jury and the court must be made in the parties' presence so that the parties have an opportunity to be heard and to object before the judge responds to the jury's inquiry. Bostic v. Connor (1988), 37 Ohio St.3d 144, 149. The trial court here erred when it did not provide appellant with an opportunity to be heard or to object before it responded to the jury's questions. Id.

{¶13} We cannot say that appellant was not prejudiced by these communications. Among other things, the jury asked:

{¶14} "When attempting to assess the defendant's character, is it legitimate to assess his mannerisms and ations [sic — actions?] during the trial?"

{¶15} "What act of the defendant is considered to be kidnaping in Count #3?

{¶16} "What act of the defendant is considered to be kidnaping in Count #4?"

{¶17} We cannot say that appellant was not harmed by the denial of an opportunity to address the court's response to these questions before the court responded to the jury. See State v. Thomas, Cuyahoga App. No. 81393, 2003-Ohio-2648, ¶24; State v. Alvarado (Sept. 13, 2001), Cuyahoga App. No. 78629. These were not matters addressed in the court's original jury instructions, so the court's response cannot be deemed repetitious.¹ Moreover, the court's response to these questions might well have affected the outcome of the case. The court's failure to address the jury's questions in the presence of the appellant therefore must be deemed prejudicial, and we must reverse and remand for a new trial.

{¶18} In light of this conclusion, appellant's remaining assignments of error are moot except to the extent that the issues raised therein might require outright reversal of the judgment against appellant. Therefore, we overrule as moot assignments of error two, three, nine, ten, eleven and twelve.² However, we will address the first, fourth, fifth, sixth and seventh assignments of error because these assignments raise issues which, if proved, would require the entry of judgment in appellant's favor.

{¶19} Appellant's first assignment of error asserts that the statute prohibiting rape unconstitutionally intrudes into the marital relationship. We strongly disagree. The rape statute does not regulate sexual relations between spouses; it prohibits the use of force or threat of force to compel another to engage in sexual conduct, whether or not the victim is the offender's spouse. R.C. 2907.02(A)(2). Marriage does not strip a person of his or her right to personal safety and bodily integrity. State v. Rittenhour (1996), 112 Ohio App.3d 219, 221. Therefore, we reject appellant's argument that the rape statute is an unconstitutional intrusion into the marital relationship.

{¶20} In his fourth and fifth assignments of error, appellant urges that the indictment was multiplicitous because it contained two counts of rape, and two counts of kidnaping and a count of abduction, all of which allegedly occurred on the same date, and the court's jury instructions did not differentiate them. Appellant then argues that the verdicts were inconsistent, somehow implicating his right not to be tried twice for the same offense.

{¶21} To the extent that appellant argues the indictment was defective, he waived that argument by failing to raise it before trial. See Crim.R. 12(C)(2); State v. Blalock, Cuyahoga App. Nos. 80419 and 80420, 2002-Ohio-4580, ¶75.

{¶22} At trial, the prosecutor differentiated the two rape charges, arguing that count one referred...