State v. Kelley
| Docket Number | 111994 |
| Decision Date | 18 January 2024 |
| Citation | 2024 Ohio 157 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. JOVAN KELLEY, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
1
2024-Ohio-157
STATE OF OHIO, Plaintiff-Appellee,
v.
JOVAN KELLEY, Defendant-Appellant.
No. 111994
Court of Appeals of Ohio, Eighth District, Cuyahoga
January 18, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-659964-A
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Kerry Sowul, Assistant Prosecuting Attorney, for appellee.
Joseph V. Pagano, for appellant.
JOURNAL ENTRY AND OPINION
MICHAEL JOHN RYAN, JUDGE
{¶ 1} Defendant-appellant, Jovan Kelley, appeals from his judgment of conviction on several sexually oriented offenses and sexually violent predator specifications, which were rendered after a bench trial. After a thorough review of
the facts and pertinent law, we affirm the findings of guilt, vacate the portion of the trial court's judgment imposing postrelease control, and remand the case to the trial court for the limited purpose of resentencing relative to postrelease control and the issuance of an appropriate judgment entry.
Procedural History
{¶ 2} In 2021, Kelley was charged in an eight-count indictment with five counts of gross sexual imposition (Counts 1 through 5) and three counts of rape (Counts 6-8) relative to two victims, J.J. and J.G. Each count contained a sexually violent offender specification.
{¶ 3} In May 2022, Kelley filed a motion for an order to direct Frontline Services ("Frontline") to release all relevant records regarding mental health treatment received by one of the victims, J.J., for an in camera inspection. As grounds for the motion, defense counsel asserted that he believed the records were "crucial to the defense and may provide exculpatory information." The state opposed the motion on the grounds that the records (1) were privileged, (2) not within its possession, and (3) were not contemplated by Crim.R. 16. The trial court summarily denied Kelley's motion.
{¶ 4} After Kelley waived his right to a jury trial, the case proceeded to a bench trial in August 2022. After certain testimonies, the state requested to amend the indictment to change the form of the sexual conduct and change the dates of the crimes. The trial court granted the state's request.
{¶ 5} The defense renewed its request for production of the Frontline records after the testimony of the victims' mother; the trial court again denied the request.
{¶ 6} At the close of state's evidence, the defense made a Crim.R. 29 motion for judgment of acquittal. In response, the state dismissed Count 7, rape of J.G. The trial court denied the motion as to the remaining counts. The defense did not present any witnesses.
Facts as Elicited at Trial
{¶ 7} The victims - J.J. and J.G. - are sisters. During the relevant period of time, their mother was dating Kelley. The abuse began in 2018, when J.J. was 11 years old and J.G. was nine years old and spanned an approximate eight-month period. Thus, at all relevant times the victims were under the age of 13.
{¶ 8} The victims' mother started dating Kelley in early 2018. Approximately six months after they started dating, Kelley moved into the house in Cleveland where mother, J.J., and J.G. lived. Both victims initially got along with Kelley.
{¶ 9} Kelley's relationship with the girls changed in the fall of 2018, however. J.J. testified that Kelley would allow her to use an old cell phone of his to make Tik-Tok videos. On one particular occasion in the fall of 2018 when J.J. asked Kelley for his phone, Kelley, who was laying down on a couch in the living room with a thin sheet over him, told J.J. that she could use the phone if she massaged his "hand." The air conditioner was on in the house, and Kelley told J.J. his hand was
cold. J.J. agreed to give Kelley the massage. Kelley's hands remained covered by the sheet.
{¶ 10} While giving the massage, J.J. realized that she was massaging Kelley's penis, not his hand. J.J. tried to move her hand "up" so that it would not be touching Kelley's penis, but Kelley moved it back "down." J.J. testified that she was certain she was massaging Kelley's penis because she knows what a hand feels like and what she was massaging had a different feel. J.J. further testified that Kelley set a timer for the massage and if she stopped massaging, he would add more time.
{¶ 11} J.J. testified that a second incident occurred in the spring of 2019, and was much like the first incident, with Kelley telling her she could use his cell phone if she massaged his "hand." As with the first incident, Kelley had his hands under a sheet. J.J. testified that she knew she was massaging his penis because she could see Kelley's penis "[t]hrough the imprint on the sheet."
{¶ 12} A third incident happened the following day, and as with the two other incidents was preceded by J.J.'s request to use Kelley's phone. J.J. testified that Kelley did not have a sheet on or covering him during this incident, but he was wearing shorts, and she massaged his penis over his shorts. And during this incident, Kelley's hands were clasped and on his chest.
{¶ 13} When the third massage was over, J.J. had a conversation in the bathroom with her sister, J.G. After this conversation, she "realized that [she] was right about what [she] thought [she] was really massaging."
{¶ 14} J.G. testified that her relationship with Kelley began to change when she felt that Kelley was invading her privacy. J.G. testified, for example, about an incident where Kelley found her journal and turned it over to her mother.
{¶ 15} J.G. testified that Kelley also had sexual encounters with her, the first occurring in the fall of 2018, when Kelley asked her to massage his "hand." On that occasion, J.G. and Kelley were in the living room watching a movie. They were both on the couch - Kelley was lying down with a blanket over his stomach and legs and J.G. was seated by his side.
{¶ 16} J.G. started to massage Kelley's "hand" over the top of the blanket but realized that what she was massaging did not "feel like a hand," rather it felt "squishy." According to J.G., Kelley's hand was directly on his penis, and she was massaging his penis. J.G. testified that as she massaged Kelley's penis, Kelley "had his head back with his eyes closed" and made several "grunts."
{¶ 17} J.G. testified that the "same thing" happened a week or two later. This time, Kelley called J.G. to the living room to watch a movie with him. Kelley had a blanket covering him and asked J.G. to massage his "hand." J.G. testified that Kelley's hand was "where a man's penis is" and she massaged his penis over the blanket. After this second incident, J.G. researched "how to do a hand job" to determine if that was what she was doing when she gave Kelley the massages.
{¶ 18} J.G. also testified that the massages occurred on two other occasions, but she was unable to give details about the circumstances surrounding them. She mentioned these other massages for the first time during the trial.
{¶ 19} J.G. corroborated J. J.'s testimony about the conversation the two had in the bathroom. A day or two after that conversation, J.J., J.G., their mother, and Kelley went to a restaurant to pick up a carry-out order. Their mother went into the restaurant to pick up the order, while the victims and Kelley stayed in the car. The two victims confronted Kelley about the massages. Kelley denied the accusations and told the girls that they were going to tell their mother what they were accusing him of when she returned.
{¶ 20} Upon the mother's return to the car, J.J. disclosed to her mother that Kelley had been having her massage his penis in exchange for use of his cell phone. Mother, Kelley, and the girls went home, at which time mother contacted her mother or the victims' maternal grandmother. The grandmother came to the home, and the victims disclosed the abuse to her.
{¶ 21} Because of their professional pursuits, both mother and grandmother were bound as mandatory reporters of alleged sexual abuse. Neither one reported the abuse the girls had disclosed to them at that time, however. Mother had Kelley leave her house for a period of time.
{¶ 22} Mother allowed Kelley to come back to her home approximately one month later. Mother requested that Kelley apologize to the girls. J.G. testified that Kelley told them he would never do what they had accused him of because he had sisters. Mother's relationship with her daughters deteriorated around this time.
{¶ 23} J.G. testified that after Kelley returned to their house, he raped her one evening. According to J.G., she, her mother, and Kelley were watching a movie
in the living room. J.G. remembered that she was wearing "Strawberry Shortcake" pajama bottoms. Her mother, who J.G. described as a heavy sleeper, was asleep. J.G. started to doze off but was awakened by a pain in her lower back. She described the pain as coming from her "butt." J.G. turned around and saw Kelley "right there," standing over her with his "two hands * * * on both of [her] sides." J.G. testified that while Kelley was standing over her, she felt pain "in [her] butt." J.G. initially thought the pain was from dance activities that she had been involved in at the time and dismissed it.
{¶ 24} The next morning when J.G. woke up, she was still suffering from pain in her "butt." J.G. went to the bathroom and discovered that she was bleeding, but she was not menstruating. J.G. testified that she bled for several days and was in pain for several weeks.
{¶ 25} In the spring of 2019, there was a fire in the house where the victims, their mother, and Kelley had been living, which caused them to move into the grandmother's house in Cleveland Heights. According to mother, Kelley was "distant" from the family during this time.
{¶ 26} J.G. testified to another rape that occurred in August 2019. On that occasion, J.G. was playing a video game in her mother's room. She was on her...
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