State v. Moore, 2018-CA-14

• Decision Date: 03 May 2019
• Docket Number: No. 2018-CA-14,2018-CA-14
• Citation: 135 N.E.3d 1114,2019 Ohio 1671
• Parties: STATE of Ohio, Plaintiff-Appellee v. Anthony R. MOORE, Defendant-Appellant
• Court: Ohio Court of Appeals

135 N.E.3d 1114

2019 Ohio 1671

STATE of Ohio, Plaintiff-Appellee

v.Anthony R. MOORE, Defendant-Appellant

No. 2018-CA-14

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

Rendered on the day of May 3, 2019

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Greene County Prosecutor's Office, Appellate Division, 55 Greene Street, 1st Floor, Xenia, OH 45385, Attorney for Plaintiff-Appellee

DAVID R. MILES, Atty. Reg. No. 0013841, 125 W. Main Street, Suite 201, Fairborn, Ohio 45324, Attorney for Defendant-Appellant

OPINION

HALL, J.

{¶ 1} Anthony R. Moore appeals from his conviction and sentence on five counts of gross sexual imposition involving a child under age 13, five counts of rape of a child under age 13, and three counts of rape by force.

{¶ 2} Moore advances eleven assignments of error. The first four involve the trial court's admitting into evidence statements made by the minor victim, A.D., to various people. Moore contends the child's statements were inadmissible hearsay. The fifth assignment of error challenges the trial court's decision to allow leading questioning of A.D. about anal intercourse allegations. The sixth assignment of error alleges cumulative error based on the foregoing evidentiary issues. The seventh and eighth assignments of error challenge the legal sufficiency and manifest weight of the evidence to sustain Moore's convictions. The ninth assignment of error alleges that the record does not support the trial court's imposition of consecutive sentences. The tenth assignment of error challenges the trial court's imposition of statutory maximum sentences for gross sexual imposition and rape. Finally, the eleventh assignment of error alleges cruel and unusual punishment based on the maximum sentences imposed.

{¶ 3} At trial, A.D. testified that Moore had been her mother's boyfriend and that he had moved into her mother's house when A.D. was 10 years old. (Tr. at 44.) From age 10 to 12, she lived with Moore, her mother, and her brother in a house on Lowell Road in Greene County. They then moved to a house on Atkinson Drive in Greene County, where they resided until Moore's arrest in the summer of 2017. (Id. at 36-37.) A.D. considered Moore to be her stepfather. (Id. at 44.)

{¶ 4} On June 15, 2017, 13-year-old A.D. spent the day at King's Island amusement park. Upon returning to the house on Atkinson, she took a shower, got dressed, and fell asleep in her mother's bed while watching Netflix. (Id. at 46, 48.) At that time, A.D.'s mother and Moore were sleeping on a couch in the living room where there was air conditioning. (Id. at 47-48.) A.D. testified that Moore came into the bedroom three times that night and touched her "butt" with his hand underneath her clothes. (Id. at 49.) After the third time, he pulled down her pants, got on top of her, and put his penis in her vagina. (Id. at 50-51.) A.D. testified that she did not want to have sex with Moore and that her vagina hurt. (Id. at 51-52.) After Moore ejaculated and left the room, A.D. pulled up her pants and tried to go back to sleep. (Id. at 53.)

{¶ 5} The following morning, A.D.'s father picked her up to go out for breakfast. (Id. at 53.) A.D. then went swimming at her uncle's house before going to a church social activity. (Id. at 54-55.) She ended the day at her father's girlfriend's house, where she spent the night. (Id. at 56.) While there, A.D. told her father's girlfriend what Moore had done the previous night. (Id. at 61.) A.D.'s father also was present, and his girlfriend told him what had happened. (Id. at 62.) Shortly thereafter, A.D.'s mother called A.D. and asked whether "it was true." (Id. at 64.) A.D. responded affirmatively. (Id. ) She then returned to the Atkinson house and told a police officer what Moore had done the previous night. (Id. ) A.D. also went to the hospital to be examined by a nurse. (Id. at 65.) As part of the examination, the nurse collected her underwear, which was the same pair she had been wearing the night before. (Id. at 66.) On two subsequent occasions, A.D. told a doctor at Dayton Children's Hospital and a representative of Michael's House, a child-advocacy center, what Moore had done to her. (Id. at 67.)

{¶ 6} A.D. testified at trial that the incident on June 15, 2017 was not the only time Moore had abused her. She stated that the abuse began when she was 11 years old and living on Lowell Road. (Id. at 67-68.) According to A.D., it happened "[a]lmost every day" at the house on Lowell. (Id. at 68.) A.D. estimated that after she moved to Atkinson Drive the abuse occurred "[e]very couple nights." (Id. ) With regard to what occurred at the Lowell residence, A.D. testified that she was under the age of 13 the entire time and that the abuse occurred in different places in the house. (Id. at 68-69.) As for specific incidents, A.D. testified that on one occasion Moore placed his erect penis in her mouth two times while she was on a living room couch. During that incident, he also placed his hand underneath her clothes and touched the outside of her vagina. (Id. at 69-75.) A.D. recalled another time when she was sleeping in her mother's bed with her mother and Moore. On that occasion, Moore reached underneath her clothes and rubbed the outside of her vagina with his hand. (Id. at 78-79.) On yet another occasion, A.D. and Moore were on her mother's bed while her mother was in the shower. According to A.D., Moore pulled down her pants, placed his erect penis in her vagina, and ejaculated. (Id. at 80-83.) A.D. then testified about a time at the Atkinson house prior to her 13th birthday when she was sleeping on a couch. A.D. recalled that Moore touched her "butt" underneath her clothes and also put his penis in her vagina. (Id. at 87-90.) A.D. testified that on multiple occasions Moore put his erect penis in her "butt" and that it hurt. (Id. at 97-100.) A.D. also recalled an incident at the Atkinson house before she was 13 when Moore inserted his penis in her vagina and then pulled it out and held it so he would not ejaculate inside of her. (Id. at 103-104.)

{¶ 7} The next witness at trial was L.M., who was A.D.'s father's girlfriend at the time of A.D.'s disclosure of sexual abuse. L.M. testified that A.D. and another girl came to her house on June 16, 2017 to spend the night. (Tr. at 219.) While there, A.D. started braiding L.M.'s hair. As she did so, A.D. mentioned that she did not want to stay with Moore at her mother's house anymore. (Id. at 222.) A.D.'s father then asked, "[T]hat boy hasn't touched you, has he?" A.D. did not directly answer but repeated that she "never wanted to be there anymore." (Id. at 230.) A.D. then went into the kitchen and asked L.M. to come in to talk. A.D. proceeded to disclose that when she woke up the previous night her pants were down. (Id. at 237.) A.D. indicated that her vagina felt "different" and she identified Moore as having been involved. (Id. at 238.) L.M. and A.D. then got in a car and headed toward the child's mother's house. Before they arrived, A.D. admitted that she and Moore had engaged in sexual intercourse, that it was not the first time, and that it first happened when she was 10 years old. (Id. at 256.)

{¶ 8} The next witnesses were forensic scientists Sara DeVine and Katharine Dailey from the DNA section of the Ohio Bureau of Criminal Investigations. DeVine testified about bodily fluid on a pair of underwear collected from A.D. during a sexual-assault examination at the hospital. (Id. at 282.) She confirmed the presence of semen in the crotch of the underwear. (Id. at 312.) Dailey then performed DNA testing on the semen and found a mixture of DNA profiles. A.D. was identified as one of the contributors. (Id. at 338.) After obtaining and testing a DNA sample from Moore, Dailey identified him as the other contributor. (Id. at 346.) She opined that the chance of the DNA sample being consistent with that of another person was less than one in one trillion. (Id. at 347.)

{¶ 9} The next person to testify was A.D.'s mother, M.D. She testified that she was in a relationship with Moore in June 2017. (Id. at 357.) She had lived with him in a house on Lowell Road from June 2014 until September 2016. (Id. at 360.) They had lived on Atkinson Drive from September 2016 until June 2017. (Id. ) M.D. testified that A.D. was younger than 13 years old the entire time they lived on Lowell Road. (Id. at 361.) A.D. turned 13 years old in October 2016 shortly after they moved to Atkinson Drive. (Id. at 361-362.) M.D. testified that she was a sound sleeper who sometimes took sleeping medication. She also testified that A.D. sometimes slept in the same bed with her and Moore when they lived on Lowell Road and on Atkinson Drive. M.D. sometimes slept with Moore on a living-room couch and allowed A.D. to sleep alone in their bedroom. (Id. at 362-365.)

{¶ 10} The night before A.D.'s disclosure, M.D. and Moore had slept on the couch and A.D. had slept in their bed. M.D. recalled Moore "getting up and getting down" during the night before finally staying asleep. (Id. at 368.) M.D. arose in the morning and went to work. Later that day after work, L.M. took A.D. to stay at L.M.'s house with the child's father. (Id. at 373.) Later still, A.D.'s father came to M.D.'s house. He was angry and was looking for Moore. (Id. at 383.) In response, M.D. called A.D. on the telephone and asked whether Moore had tried to touch her. A.D. started crying and responded affirmatively. (Id. at 384-386.) Moore was home with M.D. at the time, and he "took off out the back door." (Id. at 387.) A.D. then returned to M.D.'s house within minutes, and M.D. called the police. (Id. ) A.D. disclosed to the police that Moore had put his penis in her vagina. (Id. at 388.) M.D. then took A.D. to the hospital for an examination by a sexual-assault nurse. She later took A.D. to Michael's House, a child-advocacy center, to be interviewed and to a clinic for another examination. (Id. at 390.)

{¶ 11} The next witness at trial was...