State v. Lykins, Case No. 18CA1079

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtABELE, J.
PartiesSTATE OF OHIO, Plaintiff-Appellee, v. MICHAEL LYKINS, Defendant-Appellant.
Decision Date12 August 2019
Docket NumberCase No. 18CA1079

2019 Ohio 3316

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL LYKINS, Defendant-Appellant.

Case No. 18CA1079

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

August 12, 2019


DECISION AND JUDGMENT ENTRY

APPEARANCES:

Matthew F. Loesch, Portsmouth, Ohio, for Appellant.1

David Kelley, Adams County Prosecuting Attorney, and Kris Blanton, Adams County Assistant Prosecuting Attorney, West Union, Ohio, for Appellee.

CRIMINAL CASE FROM COMMON PLEAS COURT
ABELE, J.

{¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of conviction and sentence. The jury found Michael Lykins, defendant below and appellant herein, guilty of three counts of rape, in violation of R.C. 2907.02(A)(2). The trial court sentenced appellant to serve a total of thirty years in prison. Appellant assigns the following errors for review:

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FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ABUSED ITS DISCRETION IN PREVENTING APPELLANT FROM PRESENTING EVIDENCE REGARDING THE FACT THAT THE ALLEGED VICTIM IN THE INSTANT CASE WAS POSITIVE FOR A SEXUALLY TRANSMITTED DISEASE THAT HE DID NOT HAVE AND COULD NOT HAVE PASSED ON TO THE ALLEGED VICTIM."

SECOND ASSIGNMENT OF ERROR:

"DEFENDANT'S CONVICTIONS FOR THREE COUNTS OF RAPE WERE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT IMPROPERLY SENTENCED APPELLANT TO CONSECUTIVE PRISON TERMS."

FOURTH ASSIGNMENT OF ERROR:

"APPELLANT'S COUNSEL WAS INEFFECTIVE FOR (A) FAILING TO PRESENT EXPERT MEDICAL TESTIMONY REGARDING THE ISSUE OF THE ALLEGED VICTIM'S CHLAMYDIA AND (B) FAILING TO OBJECT TO IMPROPER HEARSAY EVIDENCE."

FIFTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ABUSED ITS DISCRETION IN LIMITING APPELLANT'S CROSS EXAMINATION OF KENNY DICK REGARDING ISSUES MATERIAL TO HIS DEFENSE."

SIXTH ASSIGNMENT OF ERROR:

"CUMULATIVE ERRORS COMMITTED DURING APPELLANT'S TRIAL DEPRIVED HIM OF A FAIR TRIAL

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AND REQUIRE A REVERSAL OF HIS CONVICTIONS."

{¶ 2} In December 2015, the victim informed a school guidance counselor that appellant and the victim's mother had engaged in inappropriate sexual contact with the victim. The victim later was interviewed at the Mayerson Center at Cincinnati Children's Hospital, a child advocacy center. During the interview, the child disclosed the nature of the sexual contact. An Adams County grand jury subsequently returned an indictment that charged appellant with three counts of rape, in violation of R.C. 2907.02(A)(2) and one count of gross sexual imposition, in violation of R.C. 2907.05(A)(1).

{¶ 3} After appellant's indictment, appellant filed a motion that requested the court to schedule a hearing to consider his request to admit evidence regarding the victim's sexual activity. Appellant asserted that the victim tested positive for chlamydia in February 2016 and, that in March 2016, appellant tested negative. Appellant argued that evidence that the victim tested positive for chlamydia and that he did not helps to illustrate that he did not rape the victim.

{¶ 4} The state, however, asserted that appellant's medical records show that he tested negative for Chlamydia on March 1, 2016 and that in December 23, 2015, appellant was treated with an antibiotic used to treat bacterial infections, including chlamydia. The state also alleged that evidence that the victim tested positive for chlamydia fifteen months after the conduct alleged in the indictment is not relevant evidence.

{¶ 5} At the rape-shield hearing, the trial court questioned both parties whether either had medical testimony that would help the court determine whether the victim's February 2016 chlamydia diagnosis would be relevant to showing that appellant could not have been the source of the victim's sexually transmitted disease. Both defense counsel and the prosecutor stated that

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they did not intend to present medical testimony. The court then summarized what it believed to be the defense's position: (1) if the victim had chlamydia in February 2016, then she also had it in 2014, when appellant allegedly raped her, and she would have transmitted the disease to appellant; and (2) appellant's March 2016 negative test result shows that he could not have had sexual contact with the victim during 2014; otherwise, he would have tested positive for chlamydia. Appellant's counsel agreed with the court's summary of his argument.

{¶ 6} The court then inquired whether evidence that the victim had sexual contact with an unrelated third person after the dates of the rapes alleged in the indictment would be relevant to showing that the victim contracted chlamydia from a third person after she no longer had been having sexual contact with appellant.

{¶ 7} Defense counsel responded that, even though additional sexual contact between the victim and appellant had not been charged in the indictment, the victim disclosed during her Mayerson Center interview that she continued to have sexual contact with appellant "all the way up until two weeks prior to her disclosure." Defense counsel thus stated that he believed the prosecution intended to introduce evidence that the victim continued to have sexual contact with appellant up until two weeks before her disclosure. He thus stated that evidence of recent sexual contact "brings us closer in time to this whole event as it concerns [appellant]."

{¶ 8} The prosecutor agreed that the victim alleged that she and appellant continued to engage in sexual contact somewhere between two weeks and two months before the victim disclosed the sexual activity to the school guidance counselor. The prosecutor further noted, however, that appellant's medical records show that he was treated with an antibiotic and that the antibiotic may have cured any chlamydia from which appellant might have been suffering.

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{¶ 9} The trial court determined that, although the victim's chlamydia diagnosis may be relevant, the probative value did not outweigh the prejudicial effect. The court noted that because the evidence may confuse the jury, rather than enrich the jury's understanding, appellant could not introduce the victim's chlamydia diagnosis into evidence at trial.

{¶ 10} At the jury trial, Adams County Investigator Kenneth Dick testified that on December 2, 2015, Adams County Children Services informed him that children services had received a referral from the victim's school guidance counselor. Based upon that information, Dick scheduled the victim to be interviewed at the Mayerson Center at Cincinnati Children's Hospital.

{¶ 11} The investigator explained that his investigation into the alleged conduct was limited due to the passage of time. He stated that he could not collect any physical evidence because the incident had occurred over one year earlier and that appellant had moved to a new residence since that time.

{¶ 12} On cross-examination, Investigator Dick explained that when the incident occurred, the victim lived with three other female minors. Dick reported that he did not interview any of the individuals who lived in the home with the victim at the time of the alleged rapes to attempt to corroborate the victim's allegations. Dick also revealed that two of the other female minors had made sexual abuse allegations against an uncle.

{¶ 13} The victim testified that in July 2014, she lived with her mother, appellant (her mother's boyfriend), her brother and sister, and appellant's two daughters. The victim explained the circumstances surrounding the first rape as follows. In July 2014, shortly after the victim's thirteenth birthday, the victim's mother gave the victim some lingerie to wear and told the victim

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"that we were going to try something." The mother also gave the victim beer and vodka. The mother told the victim to shower and to "shave everything." The mother later told the victim to lie on the couch and remove her underwear. Appellant then laid on top of the victim and placed his penis in her vagina.

{¶ 14} The victim stated that the next two incidents occurred around Halloween 2014. The victim explained that the mother and appellant told the victim to go to their bedroom. Her mother told the victim to get undressed and to lie on the bed. Appellant then placed his penis inside the victim's vagina and held his hands on her biceps. Appellant also placed his fingers inside the victim's vagina. The victim stated that she listened to her mother and appellant because she was afraid to disobey them.

{¶ 15} The victim explained that in December 2015, she reported the allegations to her school guidance counselor. The victim recognized that a couple of months before she made her allegations, two of the other female members of her household made a sexual assault report against an uncle. The victim further stated that, shortly before she made her allegations, she talked to her mother about moving out of appellant's house. The victim stated that she now lives with her grandmother and grandfather.

{¶ 16} Social Worker Andrea Powers testified that she conducted a forensic interview of the victim at the Mayerson Center. During the interview, the victim stated that her "mom and her [mom's] boyfriend raped" her shortly after she turned thirteen years of age. After she interviewed the victim, Powers recommended that the victim "seek counseling, trauma based if available." She also recommended that the victim follow up with medical care. After the state rested, appellant filed a Crim.R. 29(A) motion for judgment of acquittal. The court granted it

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with respect to one of the four counts of rape.

{¶ 17} In his defense, appellant presented testimony from Jacinda Fite, his daughter. Fite stated that she lived with appellant from December 2013 through November 2014 and did not see appellant act inappropriately with the victim. She also did not observe any changes in the victim's behavior during the time she lived in the home.

{¶ 18} Fite indicated that the victim enjoyed spending time at the home of F.S., the mother's step-parent...

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