State v. Kuck, 2015–CA–13.

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: HALL, J.
• Citation: 79 N.E.3d 1164,2016 Ohio 8512
• Parties: STATE of Ohio, Plaintiff–Appellee v. Klint P. KUCK, Defendant–Appellant.
• Docket Number: No. 2015–CA–13.,2015–CA–13.
• Decision Date: 29 December 2016

79 N.E.3d 1164
2016 Ohio 8512

STATE of Ohio, Plaintiff–Appellee
v.
Klint P. KUCK, Defendant–Appellant.

No. 2015–CA–13.

Court of Appeals of Ohio, Second District, Darke County.

Dec. 29, 2016.

79 N.E.3d 1170

R. Kelly Ormsby, III, Darke County Prosecutor's Office, Greenville, OH, for plaintiff-appellee.

Dwight D. Brannon, Kevin A. Bowman, Douglas D. Brannon, and Matthew C. Schultz, Brannon & Associates, Dayton, OH, for defendant-appellant.

OPINION

HALL, J.

{¶ 1} Klint Kuck appeals his convictions for rape, sexual battery, and selling or furnishing beer or intoxicating liquor to an underage person. Finding no error, we affirm.

I. Background

{¶ 2} Kuck was indicted on five charges for offenses against two 19–year–old women. Kuck owned the Backroads Bar in New Madison, Ohio. "Sara"¹ visited the bar one Friday night in July 2012. The State alleged that Kuck gave Sara alcohol (violating R.C. 4301.69(A), selling or furnishing beer or intoxicating liquor to an underage person) and then raped her behind the bar (violating R.C. 2907.02(A)(1)(c), sexual conduct when the other person's ability to resist or consent is substantially impaired). Seven months later, in February 2013, "Jane"² visited the bar on a Friday night. The State alleged that Kuck gave her alcohol too (again violating R.C. 4301.69(A) ) and that he brought her to his home (kidnapping her under R.C. 2905.01(A)(2) ) where he raped her (again violating R.C. 2907.02(A)(1)(c) ). The offenses against both women were jointly tried to a jury. At trial, the State first presented the evidence supporting the offenses against Sara and then presented the evidence supporting the offenses against Jane. When the State rested, Kuck presented his defense. Following Kuck's evidence, the State presented two rebuttal witnesses.

79 N.E.3d 1171

Sara

{¶ 3} Sara testified that on Friday, July 13, 2012, she went to her girlfriend's house for a pool party, where each had a couple of Bud Lights. While Sara was there, the girlfriend called her husband only to hear a woman answer the phone, which upset her. The girlfriend then convinced a reluctant Sara to go with her to the Backroads Bar. The girlfriend used to work there and wanted to see some of the people she used to work with.

{¶ 4} Sara drove them to the bar in her car, and they arrived around 10:30 or 11:00 p.m. There the girlfriend introduced Sara to Kuck, whom Sara had never met before. According to Sara, neither Kuck nor anyone else at the bar ever asked how old she was. Sara had not planned on drinking, but she was pressured into it. Soon after arriving she downed two shots and half a can of Bud Light, all of which Kuck had brought to her. After the second shot, she felt very tired, so Sara went out to her car and fell asleep. The girlfriend later found and woke her. The two went back into the bar, and Kuck handed Sara another shot, which she drank. Afterwards, said Sara, "something didn't feel right and I was really tired still and I remember looking across the clock in the bar and then it felt like my knees were about to collapse." (Tr. 212).

{¶ 5} Sara noticed that she had received a text message, but she could not respond because her phone was dead. So she left the bar to go recharge the phone in her car. But Sara could not remember getting there. The next thing she knew, Kuck was knocking on the car window, or opening the car door. She tried to stand up but blacked out. The next time she woke, Kuck was holding her up against the outside wall of the bar, and Sara felt his penis in her vagina. Sara yelled out, and Kuck took off running. Sara's legs would not support her weight, and she passed out on top of the nearby air-conditioning unit. Around 4:00 a.m. Sara's girlfriend tried to get her husband to come and pick them up, but he refused. So Kuck gave them a ride home. Sara remembered only waking for about two seconds in the back of Kuck's truck and seeing her girlfriend and him talking.

{¶ 6} Sara woke up later Saturday morning in her girlfriend's home. She told her girlfriend what had happened. When she got to her own home, Sara put the clothes that she had worn to the bar into a grocery bag and threw the bag into a closet. She took a "morning after pill" that day and went to see her doctor (actually, a physician's assistant) the following Monday. Sara tearfully described to the doctor what had happened. The doctor performed STD tests. She also encouraged Sara to report the matter at the hospital and to get Sara counseling. But Sara did not report the incident, because she did not feel strong enough at the time. When she returned to college in Indiana, where she was a student, she saw both a psychologist and a psychiatrist. Eventually, it all became too difficult for Sara to deal with, so she withdrew from school.

{¶ 7} Six months or so later, Sara heard that Kuck had been accused of raping Jane. Sara communicated with her, and Jane encouraged her to come forward and contact the police. After hearing about Jane and having had months of therapy, Sara was ready to talk to the police. She spoke first with the New Madison Police Department and later with the Darke County Sheriff's Office. Sara gave police the clothes that she had worn that night, which were still in the bag in her closet. DNA analysis found Kuck's DNA on her underwear and shorts. Sara was adamant that she never agreed to have sex with Kuck that night or led him to believe that she wanted to have sex with him. Testified

79 N.E.3d 1172

Sara: "I absolutely did not consent" "[b]ecause I've never, and nor will I ever, sleep with a stranger ever." (Tr. 281).

{¶ 8} Sara's girlfriend's testimony agrees with Sara's as to the events leading up to their visit to the bar. After they arrived, the girlfriend thought Sara got a beer to drink. She testified that she thought she told Kuck that Sara was underage, but her testimony is not clear on this point. After a while, said the girlfriend, she could not find Sara inside, so she went out to the car, where she found her. She testified that Sara "was acting different and funny," that she was "[j]ust out of it. Just sleepy somehow or just—it's not who I walked in with after drinking one beer. She was totally different." (Id. at 343).

{¶ 9} Sara's girlfriend said that they went back inside and that she again lost track of Sara. This time she found Sara outside lying on the air-conditioning unit. The girlfriend testified that she then had a time of memory loss herself that night, saying that she had never had the experience where she was "that messed up where I'm totally not knowing from 11:30 to 4:00 what happened." (Id. at 359). The girlfriend said that Kuck took her and Sara home. Later that morning, at her home, the girlfriend said that Sara told her about what happened with Kuck. On Sunday, Kuck called Sara's girlfriend "to see if we [the girlfriend and Sara] were all okay." (Id. at 348). Sara's girlfriend thought that this was odd because other times that she had been out drinking he never called to check on her.

Kuck's defense

{¶ 10} Kuck took the stand to testify in his own defense. He testified that Sara's girlfriend told him that Sara was 21 years old. Kuck admitted that he was already drunk when the two arrived. He said that Sara did not seem drunk when she arrived but appeared to get drunk while at the bar. Around 1 a.m., Sara asked Kuck and one of his friends if they wanted to go outside for a cigarette. Kuck agreed, though he does not smoke, and they went out behind the bar. After 10 or 15 minutes, said Kuck, he and Sara started kissing. According to Kuck, one thing lead to another and she performed oral sex on him for a couple of minutes. Then Sara turned around and lowered her pants so that they could have intercourse. But Kuck "got off" before they could do that. (Tr. 735). Afterwards, Kuck went back into the bar alone and Sara followed five minutes later, because, said Kuck, she did not want her girlfriend to see them walk in together.

{¶ 11} Kuck said that he and Sara talked and drank until 2:30 a.m., closing time, when Sara and her girlfriend left. When Kuck left to go home around 3:15 a.m., he found them still outside because Sara had locked her keys in her car. Sara was sleeping on the air-conditioning unit behind the bar. After Sara's girlfriend and Kuck chatted for a bit, the girlfriend called her husband to come pick them up. He refused, so Kuck took them home. He picked up Sara and put her in his truck and then drove them to the girlfriend's house and dropped them off.

{¶ 12} Kuck also presented the testimony of Tim Painter, Cody Harris, and his mother, Diana Kuck. Painter testified that he thought that he was at the bar the night that Sara was there and that he went outside at one point and saw Kuck and Sara kissing behind the bar. Painter said that he was "pretty intoxicated," having twenty drinks by the end of the night. And he admitted that he did not know Sara. It was later that he came to believe that she was who he saw kissing Kuck that night. Harris testified that he had been friends with the Kuck family for years. He said that he was at the Backroads Bar when Sara came in on the night in question.

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