State v. Marshall, 109633

Decision Date16 December 2021
Docket Number109633
Citation2021 Ohio 4434
PartiesSTATE OF OHIO, Plaintiff-Appellee, v. JUANITO MARSHALL, Defendant-Appellant.
CourtOhio Court of Appeals

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-635603

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Eben O. McNair, Assistant Prosecuting Attorney for appellee.

Russell S. Bensing, for appellant.



{¶1} Defendant-appellant Juanito Marshall ("Marshall") appeals his convictions for multiple counts of rape and other charges after a jury trial. For the following reasons, we affirm.

Factual and Procedural History

{¶ 2} On November 8, 2018, then 16-year-old K.H. revealed that she had been raped when she was seven. She and her mother, C.E., got into an argument, and K.H. yelled that her mother did not care about her and did not know she had been raped in the past. K.H. told C.E. that Marshall was the rapist. C.E. immediately called Marshall, and then her sister, T.T. Marshall and T.T. had been in a relationship years ago and share a daughter, Al.M. K.H. and C.E., who had moved out of state, immediately arranged to return to Ohio. On November 12, 2018, C.E., K.H., and T.T. went to the Broadview Heights police station to report the rapes.

{¶ 3} On March 4, 2019, Marshall was indicted as follows: Count 1, rape (fellatio) by force of a victim under the age of ten; Count 2, kidnapping of a victim under the age of eighteen with a sexual motivation; Count 3, endangering children, causing serious physical harm; Count 4, disseminating matter harmful to a juvenile where the victim was under thirteen years of age; Count 5, rape (fellatio) by force of a victim under the age of ten; Count 6, rape (anal penetration) by force of a victim under the age of ten; Count 7, endangering children, causing serious physical harm; Count 8, kidnapping of a victim under the age of eighteen with a sexual motivation; Count 9, disseminating matter harmful to a juvenile where the victim was under 13 years of age; Count 10, endangering children.

{¶ 4} The parties filed several pretrial motions. Most relevant to this appeal, Marshall filed a motion to exclude any testimony regarding his past sexual behavior with T.T. Marshall argued that testimony from T.T. as to digital anal penetration during intercourse and asking her to open her mouth wider during oral sex was not relevant or admissible. In his motion, Marshall argued that the evidence was inadmissible under the rape shield statute R.C. 2907.02(D) and that it was inadmissible under both Evid.R. 404(B) and R.C. 2945.59. In response, the state argued that the evidence was both admissible and relevant and that it would show Marshall's plan and modus operandi.

{¶ 5} The trial court heard testimony from T.T. prior to trial. After hearing her testimony, the trial court held in abeyance its ruling on Marshall's motion. The court found that the admissibility of T.T.'s testimony would depend on K.H.'s testimony.

{6} The trial began on February 12, 2020, and the testimony was as follows: Sometime in early 2009, K.H., C.E., and M.M., moved into Marshall's home in Broadview Heights. At that time, Marshall, T.T., and their daughter Al.M. lived in the home. At the time, C.E. had guardianship of M.M., her aunt, who had dementia. Moving in allowed C.E. to secure T.T.'s assistance in caring for M.M. The home had five bedrooms. K.H., C.E., and M.M. slept in a downstairs bedroom. Marshall and T.T. had the master bedroom on the second floor. Al.M.'s bedroom was next to the master. K.H. would share Al.M.'s room on occasion. Marshall's four other children, J.M., Am.M., I.M., and G.M. would periodically stay at the house. When all the kids were there, the boys would sleep in one room and the girls would sleep in another.

{¶ 7} K.H. thought of Marshall as an uncle and treated him as such. They had a good relationship. Marshall would always compare K.H. to T.T., telling her that they looked a lot alike and that when K.H. grew up she was going to be prettier than T.T.

The First Offense

{8} K.H. testified that the first offense happened when C.E. and T.T. had gone shopping. Al.M. was watching TV on the first floor while K.H. was playing in Al.M.'s bedroom. Marshall was in the master bedroom, which also had a computer room. K.H. testified that Marshall called her by name, and she went into the computer room. When K.H. entered, she saw Marshall seated with his pants open and his penis exposed. Marshall started moving his penis and said to K.H., "I know you see it." K.H. testified she was scared and thought she was in trouble. When she tried to leave, Marshall grabbed her by the arm and wouldn't let her go. At that point, they heard the garage door open. Marshall let her go and K.H. ran out of the room.

{¶ 9} T.T. testified that Marshall told her about the incident; however, according to T.T., Marshall told her that K.H. inadvertently saw his penis when he was in the computer room. He alleged that he was wearing loose pants and his penis was exposed. Marshall told T.T. that he had an "uncle-niece" conversation with K.H. about how that was inappropriate. T.T. told C.E. about the incident. C.E. was upset when she heard, then talked to K.H. about it. Based on the information C.E. received at the time, she did not feel it was necessary to leave the home or take any further action.

The Second Offense

{¶ 10} K.H. testified that the second offense happened a couple of months after the first incident. K.H. was unsure exactly when this happened but was sure that T.T. was no longer living in the home at that time.

{¶ 11} During the second incident, K.H. testified that she woke up and her mother and great aunt were still sleeping. K.H. went upstairs to the master bedroom and started playing cards with Marshall. At some point, Marshall began to pick K.H. up and throw her on the bed. At one point, he picked her up and digitally penetrated her anus through her underwear before tossing her on the bed. Marshall asked her if it hurt and K.H. nodded yes. Marshall then grabbed a DVD that had a picture of a naked man and woman on it. The woman's legs were spread open, and the man was lying between them. K.H. testified that Marshall asked K.H. if she wanted that picture to be the two of them. K.H. didn't know what to say, so she nodded yes. After that, they kept playing cards until C.E. called up for K.H. and asked what she was doing. K.H. told C.E., "nothing, playing cards," then went back downstairs. K.H. did not tell C.E. what happened at that time because she was scared.

{¶12} On cross-examination, the defense questioned K.H. about a videotaped interview she gave to the police. K.H. testified that she did not recall some parts of her interview. On her second day of testifying, K.H. remembered that there were two incidents of oral sex, not one as she had previously testified. K.H. was not able to remember the details of the first incident of oral sex, only that it either happened during the second incident or sometime between the second and third incident.

{¶13} The trial court then permitted the defense to show K.H. her videotaped statement to refresh her recollection. After viewing the video, K.H. recalled telling two of Marshall's children, Am.M. and J.M., about performing oral sex on Marshall. Additionally, she remembered that Am.M. and J.M. advised her to bite Marshall if he tried to make her do it again.

The Third Offense

{¶ 14} The third offense happened sometime after K.H., C.E. and M.M. moved out of the Broadview Heights home. K.H. was visiting the home to play with Marshall's children. All the kids were in the master bedroom with Marshall. Marshall would take turns throwing the kids on the bed. Marshall then told all the kids except K.H. to leave the room. J.M. hesitated, but, per K.H., Marshall yelled at him and J.M. left.

{¶ 15} Marshall then locked the door and got under the covers. He then pulled his pants down and made K.H. put her head under the covers. Marshall then told her to "open" and made her perform fellatio on him. He then proceeded to put his hand on K.H.'s head and move it up and down. K.H. bit him. Marshall asked her if she was okay and K.H. told him no. He then asked K.H. if she wanted to continue and K.H. told him no. K.H. then unlocked the door and ran downstairs.

{¶ 16} After viewing her videotaped statement, K.H. further recalled that before the third offense, she was sleeping in a bed with Marshall's two oldest daughters, Am.M. and I.M. Marshall came into the room and got into bed with them, spooning K.H. When they all woke up, they went into the master bedroom and Marshall began throwing them on the bed. Then Marshall kicked the other children out of the room and made K.H. stay. K.H. testified that the remainder of the third offense incident occurred as she had testified earlier.

T.T.'s Testimony

{¶ 17} After K.H.'s testimony, the trial court decided to allow T.T.'s testimony about Marshall's habits with limits. The trial court permitted her to testify that Marshall repeatedly compared K.H. to T.T. and suggested that K.H. would grow to be more beautiful than T.T. The trial court also allowed T.T. to testify about Marshall's preference for digital anal penetration. The court found there was insufficient basis to allow T.T. to testify about Marshall telling her to open her mouth wider during oral sex.

{¶ 18} T.T. testified that she met Marshall around 2000 or 2001 when she was 18 or 19 years old. They were initially friends and then began seeing one another. T.T. became pregnant, around January of 2005. T.T. and Marshall moved in together within a year of Al.M.'s birth.

{¶19} T.T. testified that...

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