State v. Jones
| Decision Date | 27 September 1996 |
| Docket Number | No. 95-CA-0039,95-CA-0039 |
| Parties | The STATE of Ohio, Appellee, v. JONES, Appellant. |
| Court | Ohio Court of Appeals |
Greg Morris, Clark County Assistant Prosecuting Attorney, Springfield, for appellee.
Gregory K. Lind, Springfield, for appellant.
Appellant Steven Jones appeals his convictions on four counts of gross sexual imposition, R.C. 2907.05(A)(4), and one count of rape, R.C. 2907.02(A)(1)(b), from the Clark County Court of Common Pleas. Jones was sentenced to two years in the Ohio State Penitentiary on each of the first four convictions, and eight to twenty-five years on the rape conviction, all to be served consecutively. He brings eight assignments of error.
Jones's trial and conviction arose from allegations by two girls, Kimberly Pizzo and Connie Green, that Jones sexually abused them. While the dates of the alleged offenses were uncertain at the time of trial and still remain somewhat uncertain, both girls claimed that they were molested during the spring of 1994 while spending the night with Jones's young daughters at Jones's home in New Carlisle, Ohio. Both girls claimed that Jones fondled them, and one girl alleged that Jones performed oral sex on her.
Kimberly Pizzo, who was ten years old at the time of the alleged abuse, testified that Jones molested her a total of four times on two occasions in the spring of 1994.
According to her testimony, Kimberly became friends with her classmate and neighbor Rachel Jones, the eldest daughter of Jones, and the girls would play together and sometimes spend the night at each other's homes. One day during the third week of March 1994, Kimberly went to the Jones home to play with Rachel. She alleges that when she arrived, Jones, who was lying on his stomach on a couch, asked her to sit on his back and crack it. She alleged that she complied with his request and that, while she sat on his back, he reached around and touched her over her clothes around her vaginal area. Kimberly testified that when Jones began touching her, she suggested to Rachel, who was sitting on Jones's lower legs, that the two of them go out to buy a pop. Rachel agreed and the girls left the Jones house.
According to Kimberly's testimony, later that day Rachel invited Kimberly to spend the night at her home, and Kimberly accepted. The girls received permission from their parents and went to Rachel's bedroom to watch movies. Rachel shared her bedroom with her younger sister, Amber, and the sisters slept in bunkbeds. Kimberly testified that she climbed onto the top bunk with Rachel and that Amber, her own overnight guest, Connie Green, and Connie's brother Guy sat on the lower bunk. She alleged that Steven Jones entered the room, sat on the top bunk between Rachel and her, who were lying on their stomachs, and began massaging their backs. Kimberly alleged that Jones felt her chest and slid his hands between her legs and felt her vaginal area. She testified that he stopped touching her when his daughter, Amber, called him down to the lower bunk. Kimberly stated that she told no one about this incident at the time.
Kimberly testified that she again spent the night at the Jones house, but could not specify how many days or weeks it was after the night that Jones allegedly first touched her. On the second night, identified by the state as being sometime between March 19 and April 24, 1994, Kimberly spent the night on the lower bunk with Amber Jones. She alleged that, while she slept on the outside edge of the bottom bunk and Amber slept next to the wall, Steven Jones entered the room and began touching her between her legs, on top of her underpants. She stated that she awoke to him touching her, pushed him off, and went directly to the bathroom. She testified that when she returned from the bathroom, Jones had left and she fell asleep again on the bottom bunk.
The next thing Kimberly claimed to remember was Jones reentering the room, removing her underpants, and licking her vagina. She testified that when she told him to stop, he asked her, "Does it feel good?" Kimberly stated that she answered "no" and that, after she again pushed him away, he left the room.
Kimberly testified that she told a friend, Jamie Little, of the incidents and that Jamie urged Kimberly to inform her mother. Within the next two days Kimberly told her mother, Deborah Pizzo, and her mother immediately contacted the police.
Dr. William Matre testified that he is an emergency room pediatrician who examined Kimberly on April 24, 1994. Dr. Matre found no signs of physical trauma or abrasions during his examination, but testified that with "fondling-type instances" it is common to find no physical evidence. When asked on direct examination whether he felt "based on his experience * * * that Kimberly Pizzo was fabricating her complaint,"Dr. Matre responded in the negative.
Connie Green, who was seven years old at the time of the alleged sexual abuse, testified that Steven Jones fondled her twice on one evening in the spring of 1994.
Connie testified that she, like Kimberly, had stayed overnight at the Jones home to play with Steven Jones's daughters. She testified that the night that she stayed at the Jones house, Steven Jones, Jones's son (also named Steven), Jones's daughters (Rachel and Amber), and Kimberly Pizzo were also present. Connie stated that the girls and Jones watched a movie on television in the Jones daughters' bedroom. She testified that she was lying with Amber Jones on the bottom bunk of the girls' bunkbeds, while Jones sat on the top bunk with Rachel and Kimberly. Connie stated that Jones was massaging the girls' backs on the top bunk until Amber called Jones down to the bottom bunk to massage her back. Jones allegedly climbed down to the bottom bunk and began massaging Amber's back. Connie stated that Amber then went into the bathroom, leaving Connie alone with Jones on the lower bunk.
Connie alleged that Jones began massaging her back, and then pulled down her underpants and fondled her. She alleges that Jones fondled her until she heard Amber returning from the bathroom, at which point Jones got up and left the room.
Connie further testified that, later that evening, Jones requested that Connie and Amber sit on his back while he lay on his stomach in bed. She stated that she complied and that while she sat on Jones's back, he reached around, slid his fingers underneath her underpants and touched her vaginal area. Connie testified that she told her mother about the incident when, about three months later, she overheard Kimberly Pizzo's mother discussing Jones's alleged molestation of Kimberly.
Dr. Robert O. Pyles, Connie Green's family physician, testified that Connie related to him that Jones had molested her. His physical examination of her did not reveal whether or not she had actually been molested.
Rachel and Amber Jones both testified that, while they would sit on their father's back in order to crack it, none of the neighborhood girls was ever asked to or ever did sit on his back. Amber Jones testified that, even when she would have a friend sleeping with her in her bed, she would always sleep on the outside edge of the bed and her guest would sleep against the wall. Rachel Jones testified that her father had climbed onto the top bunk bed only once, in order to hang a net for stuffed toys, and that the bed had begun to crack under his weight. Several defense witnesses, including Jones's wife, testified that Jones was out fishing on the night that Kimberly and Connie both stayed at the Jones house. Jones himself testified and denied ever having any sexual contact with Kimberly Pizzo or Connie Green.
Jones alleges that the failure of the indictment and bill of particulars to identify with specificity the dates of the alleged offenses deprived him of a fair trial and due process of law. The indictment alleged that counts 1 and 2, both violations of R.C. 2907.05, occurred "on or about the 18th or 19th day of March, 1994." The indictment also alleged that counts 3 and 4, two more violations of R.C. 2907.05, and count 5, a violation of R.C. 2907.05, occurred "between the 19th day of March, 1994, and the 24th day of April, 1994."
Appellant states in his brief that he requested and received a bill of particulars from the state, but asserts that "[t]he bill did not narrow or specify the times of the offenses as alleged in the indictment." Because neither the bill of particulars nor the request for it is included in the record, and in light of our decision to sustain appellant's third assignment of error, we decline to consider this assignment of error.
Here, Jones asserts that the state indulged in three improper and prejudicial statements in closing arguments. First, Jones claims that the prosecutor argued facts that were not in evidence. Second, Jones argues that the prosecution improperly expressed a belief in the credibility of the state's witnesses. Finally, Jones asserts that the prosecution's reference to the improper testimony of Dr. Matre was prejudicial.
The state is entitled to some latitude in its closing argument. State v. Maurer (1984), 15 Ohio St.3d 239, 15...
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