State v. Myqual Sims

• Decision Date: 03 April 2023
• Docket Number: 21CA15
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. GRANT ADRIAN MYQUAL SIMS, Defendant-Appellant.
• Court: Ohio Court of Appeals

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2023-Ohio-1179

STATE OF OHIO, Plaintiff-Appellee, v. GRANT ADRIAN MYQUAL SIMS, Defendant-Appellant.

No. 21CA15

Court of Appeals of Ohio, Fourth District, Hens

April 3, 2023

CRIMINAL APPEAL FROM COMMON PLEAS COURT

Kort Gatterdam and Erik P. Henry, Columbus, Ohio, for appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney Athens, Ohio, for appellee.

DECISION AND JUDGMENT ENTRY

Peter B. Abele, Judge

{¶1} This is an appeal from an Athens County Common Pleas Court judgment of conviction and sentence. A jury found Grant Adrian Myqual Sims, defendant below and appellant herein guilty of two counts of rape, in violation of R.C 2907.02(A)(2) and R.C. 2907.02(A)(1)(c).

{¶2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SEVER THE RAPE CHARGES INTO SEPARATE TRIALS AND VIOLATED

APPELLANT'S DUE PROCESS AND FAIR TRIAL RIGHTS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ADMITTING HEARSAY STATEMENTS AND VIOLATED APPELLANT'S RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ADMITTING MEDICAL RECORDS AND EVIDENCE COLLECTION KITS THEREBY VIOLATING APPELLANT'S RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS."

FOURTH ASSIGNMENT OF ERROR:

"THE ADMISSION OF OTHER ACTS TESTIMONY AND EVIDENCE REGARDING OFFENSES TO WHICH APPELLANT PLED GUILTY TO VIOLATED RULES 403 AND 404 AND APPELLANT'S RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS."

FIFTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ADMITTING RECORDS FROM THE BUREAU OF CRIMINAL INVESTIGATION THEREBY VIOLATING APPELLANT'S RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS."

SIXTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION BASED ON INSUFFICIENT EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE UNITED STATES AND OHIO CONSTITUTIONS." SEVENTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT IMPOSED A SENTENCE CLEARLY AND CONVINCINGLY CONTRARY TO LAW, THE RECORD CLEARLY AND CONVINCINGLY DOES NOT SUPPORT THE TRIAL COURT'S SENTENCING FINDINGS, AND THE SENTENCE IMPOSED IS INCONSISTENT WITH THE PURPOSES AND PRINCIPLES OF SENTENCING CONTRARY TO R.C. 2929.11 AND R.C. 2929.12 AND APPELLANT'S RIGHTS TO DUE PROCESS GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

{¶3} This appeal involves two separate encounters that occurred between appellant and J.K. and K.H.^[1] Appellant does not deny sexual encounters with the individuals, but instead contends that the encounters were consensual.

{¶4} On October 24, 2018, appellant met J.R. at a hookah lounge. The next day, J.R. told friends she had been sexually assaulted, and later sought an examination at a local hospital.

{¶5} On September 18, 2019 or the early morning hours of September 19, 2019, appellant met K.H. after she spent many hours drinking alcohol. When K.H. awoke the next day, she thought she had been raped and visited a hospital for examination. The results of each examination identified appellant as the individual who had engaged in sexual contact with J.R. and K.H.

{¶6} On February 24, 2020, an Athens County Grand Jury returned an indictment that charged appellant with (1) three counts of rape, in violation of R.C. 2907.02(A)(2), (2) one count of rape in violation of R.C. 2907.02(A)(1)(c), (3) one count of theft, in violation of R.C. 2913.02(A)(1), and (4) one count of identity fraud, in violation of R.C. 2913.49(B)(1). Appellant pleaded not guilty to all charges.

{¶7} Subsequently, appellant filed a motion to sever the charges for trial. Appellant asserted that trying the cases together, with three different victims, would cause undue prejudice and allow the state to, in effect, introduce "other acts" evidence. Appellant argued that trying the offenses together would cause him to suffer the following unfair prejudice: (1) the jury would hear "inflammatory accusations" that three individuals accused appellant of rape before hearing any evidence, which would "create an image of an individual predisposed to preying on women"; (2) the facts regarding "each incident contain slight similarities that present a strong likelihood the jury will confuse the incidents"; and (3) appellant's "ability to testify may be severely hampered." Appellant further asserted that the state could not overcome his showing of prejudice because the state could not establish that the evidence regarding the joined offenses would be admissible as other-acts evidence, or that the evidence concerning each offense is simple and direct.

{¶8} The state, however, asserted that trying the offenses together would not prejudice appellant's right to a fair trial. The state disputed appellant's claim that joining the offenses would impede his ability to testify and claimed that the evidence would be simple and direct.

{¶9} After consideration, the trial court overruled appellant's motion to sever the charges into separate trials and stated that appellant "failed to furnish sufficient information to establish that his rights would be prejudiced by trying separate counts together at trial."

{¶10} On July 20 to July 23, 2020, the trial court held a jury trial. Before the trial began, appellant pleaded guilty to counts five and six: (1) theft, in violation of R.C. 2913.02(A)(1); and (2) identity fraud, in violation of R.C. 2913.49(B)(1).

{¶11} At trial, J.R. testified that, while she talked to a friend at a local hookah lounge, she noticed appellant enter the lounge. After they spoke and exchanged contact information, appellant unexpectedly kissed her. J.R. indicated she "was extremely uncomfortable and embarrassed."

{¶12} As J.R. prepared to leave the lounge, appellant asked her for a ride and she agreed. When they reached appellant's residence, which happened to be very near to the lounge, appellant told J.R. to pull into a driveway. Once in the driveway, appellant "insisted" J.R. move to the vehicle's backseat. J.R. stated she became scared and did not exit the vehicle because "there would have been nowhere to go to." Additionally, J.R. stated that her car belonged to her grandfather and she did not feel she could abandon it.

{¶13} After J.R. followed appellant's instructions and crawled into the backseat, appellant removed her pants and undergarments, then began to perform cunnilingus and inserted his fingers into her vagina. J.R. told appellant "no" and that she did not want him to do that, but appellant did not stop. J.R. related that she "was panicking," her "body shut down," and she was crying. Appellant then began to place his penis inside her vagina.

{¶14} At that point, a car stopped next to them in the driveway and appellant exited. Before he did go, he told J.R. that "he thought that it might have been a kink for [her] to say no." J.R. responded, however, that she "really did mean no." J.R. then pulled up her pants, returned to the front seat and drove away. As she drove home, she stated she "was in a state of shock."

{¶15} J.R. explained that she went to work the day after the incident, but did not remember going to work and could not focus on her job. When a co-worker asked J.R. if she was okay, J.R. said she was not and told the co-worker that she should have called off work.

{¶16} When the state introduced into evidence a copy of Facebook messages that J.R. exchanged with the manager of the hookah lounge, appellant objected and claimed the messages are hearsay. The state asserted, however, that the messages are present sense impressions or excited utterances. The trial court overruled appellant's objection. J.R. then reviewed the exhibit that contained a copy of her Facebook message to the lounge owner, Maj. In the message, J.R. asked Maj if he could "ban someone for [her]," and she "was just sexually assaulted."

{¶17} The state also attempted to introduce into evidence another Facebook message that J.R. exchanged with a friend. After appellant objected, the trial court asked about the amount of time that elapsed between the incident and J.R.'s messages, and the state indicated that J.R. made the statements the next day. The court then overruled the objection and J.R. testified that on October 25, 2018 she messaged her friend that she "was just sexually assaulted."

{¶18} After J.R.'s testimony, the state informed the trial court that it intended to present testimony and evidence regarding J.R.'s medical records, and that appellant planned to object to the admission of those records. Appellant argued that the medical records did not fall within any hearsay exception, and instead, fell more within the realm of law enforcement investigative effort than statements related to medical treatment. The trial court, however, overruled the objection.

{¶19} At that point, registered Nurse Rachel Burns Carter testified that she performed J.R.'s intake examination. During her testimony, Carter read directly from J.R.'s incident narrative and recited a direct quote from J.R. Appellant did not object when Carter read directly from J.R.'s narrative. After Carter obtained J.R.'s narrative, she began the evidence-collection process. When the state introduced the sexual-assault evidence-collection kit appellant objected and wished to ...