State v. Pearson

• Decision Date: 04 October 1996
• Docket Number: No. 13-95-47,13-95-47
• Citation: 682 N.E.2d 1086,114 Ohio App.3d 168
• Parties: STATE of Ohio, Appellee and Cross-Appellant, v. PEARSON, Appellant and Cross-Appellee.
• Court: Ohio Court of Appeals

Page 168

114 Ohio App.3d 168

682 N.E.2d 1086

STATE of Ohio, Appellee and Cross-Appellant, v. PEARSON, Appellant and Cross-Appellee.

No. 13-95-47.

Court of Appeals of Ohio,

Third District, Seneca County.

Decided Oct. 4, 1996.

Paul F. Kutscher, Jr., Seneca County Prosecuting Attorney, and Kenneth H. Egbert, Tiffin, for appellee and cross-appellant.

Gene P. Murray, Fostoria, for appellant and cross-appellee.

THOMAS F. BRYANT, Judge.

This is an appeal by Eric B. Pearson from a judgment of conviction and sentence entered in the Seneca County Court of Common Pleas, following a jury verdict finding appellant guilty of aggravated burglary, abduction, gross sexual imposition, felonious sexual penetration, attempted rape, and rape.

On July 14, 1994, Theresa Tiell was attacked in her home in Tiffin, Ohio by a male assailant of medium build. As Tiell slept face-down in her bed, the assailant grabbed her from behind and threatened to kill her and her four-year-old son if she did not comply with his sexual demands. The assailant restrained Tiell, removed her clothes, and placed a pillowcase over her head. He then forcibly touched her breasts and vagina and attempted vaginal intercourse in front of Tiell's young son, JoJo. After being unsuccessful in his attempt at vaginal penetration, the assailant became angry and renewed his threats of harm to Tiell and her son. He then forced Tiell to engage in fellatio.

After the rape, Tiell preserved a sample of the assailant's semen, by spitting the ejaculate into her pillowcase. Later this semen sample was analyzed for DNA evidence and compared to blood samples obtained from appellant and other male acquaintances. After the rape, the assailant untied Tiell, removed one of his gloves, and began to caress her by touching her forehead and rubbing her face. Although he apologized for his actions, he threatened to kill Tiell's son if she contacted the police. After being in Theresa Tiell's home for approximately two hours, the assailant then told her to stay in bed and face the window while he left.

Approximately two hours after the assailant left the home of Theresa Tiell, seventeen- year-old Bethany Riley was attacked by a Caucasian male of medium build. While Riley was riding her bike on Township Road in Tiffin, Ohio, a blue Buick Park Avenue veered into Riley's lane of traffic and knocked her from her bike. A man, concealed by a dark hooded sweatshirt and a bandanna covering his face, got out of the car and approached Riley. The man began yelling at her and struck her across the face with his open hand. He then forced Riley into a wooded area and pushed her to the ground. While she was face down on the ground, the assailant restrained Riley's arms behind her back.

Riley began to struggle and was able to break free from the assailant, who later recaptured her and again forced her to lie on the ground. The assailant then told Riley to remain on the ground while he walked to his car. Riley, however, began to run and was able to escape to a nearby farm house, where she telephoned the Sheriff's Department and reported the incident.

At the time of the incidents involving Theresa Tiell and Bethany Riley, the Tiffin Police Department was in the process of investigating the rape of Stacie Schwab, which occurred on April 2, 1994. Appellant became a suspect in this rape, along with the two subsequent Tiell and Riley incidents when the police used Riley's description of the assailant's vehicle to scan the automobile records. The computer records revealed that a car matching Riley's description was registered to appellant's father, Leonard Pearson. Additionally, the police were aware of appellant's criminal history and that appellant had recently been released from state prison after serving approximately twelve years on a prior rape conviction.

Based upon this information, and the similarities between the three incidents, the police obtained and executed a search warrant upon appellant's residence and vehicle on August 22, 1994. They found several articles of dark colored clothing, including a blue hooded sweatshirt and a pair of gloves. The next day, the police sought a court order from the Seneca County Common Pleas Court to obtain a blood sample from Eric Pearson. The police intended to compare this blood sample with evidence collected at the scenes and from the victims of both rapes. This order was executed on September 12, 1994. Blood samples were also obtained from five other males acquainted with Tiell.

The blood samples were submitted to the Serological Research Institute for DNA analysis. The blood samples from the five male subjects and the blood sample from Theresa Tiell were subjected to genetic-marker analysis and compared with semen samples obtained from the crime scene. The results, released to the Tiffin Police Department on March 15, 1995, indicated that the semen found on Theresa Tiell's pillowcase had the same seven genetic marker types as those found in Eric Pearson's blood. Appellant was then separately indicted for the crimes committed against Tiell and Schwab. During Pearson's trial for the rape of Tiell, the state's DNA expert testified that the identified combination of genetic marker types occurs in approximately 0.000581% of the general population of Ohio or 1 in 172,000 people.

On May 10, 1995, appellant filed a motion to suppress all evidence obtained as a result of the unlawful search of himself in which blood samples were taken without a warrant. During the pendency of this motion, the state sought a warrant from the Tiffin Municipal Court to take a second blood sample from appellant on June 19, 1995. This second sample was submitted to the Serological Research Institute and subjected to the same DNA tests as the first sample. The Institute's conclusions were released to the Tiffin Police Department on July 19, 1995 and again pointed to appellant as the perpetrator of the crimes against Tiell.

On August 4, 1995, the Seneca County Common Pleas Court held a hearing on appellant's motion to suppress. In addition to his original motion, appellant filed a supplemental motion to suppress the second blood sample as a fruit of the first illegal search and as lacking probable cause. The state argued that the taking of the first blood sample pursuant to the court's order was justified under the circumstances and if the order was deemed technically incorrect, the evidence obtained pursuant to it was admissible because the DNA evidence would have been inevitably discovered during the investigation. In the alternative, the state argued that the second blood sample should be admissible at trial because it was properly obtained in accordance with a valid search warrant.

On August 16, 1995, the court denied appellant's motion to suppress. Although the court held that a search warrant should have been obtained for the first blood sample, the court concluded that this evidence was nonetheless admissible because it would have been ultimately or inevitably discovered during a lawful investigation. The court explained that since the investigating officer had knowledge of information sufficient to form a reasonable belief that the defendant might have been the perpetrator of the two unsolved rapes, the officer would have requested a search warrant for the extraction of blood from appellant, thereby making the discovery of the DNA evidence inevitable. Furthermore, the court concluded that the warrant to obtain the second blood sample was supported by sufficient facts to establish probable cause.

On August 28, 1995 appellant was tried for the crimes committed against Schwab. During this trial, the state used the DNA evidence obtained from the analysis of the first blood sample drawn from appellant. Appellant was found guilty of one count of abduction, two counts of gross sexual imposition, one count of attempted rape, and one count of rape. Appellant appealed this decision and, inter alia, challenged the constitutionality of the first blood sample. See 114 Ohio App.3d 153, 682 N.E.2d 1077.

On November 6, 1995 appellant was tried for the crimes committed against Tiell. During this trial, the state utilized the evidence obtained from the DNA analysis of both blood samples. The court, however, did not permit the introduction of evidence pertaining to the rape of Schwab. Although the circumstances of the two rape incidents were similar, the court concluded that evidence of the other rape was inadmissible. In addition, the court excluded alleged alibi evidence and expert testimony as not timely disclosed.

At the conclusion of the trial, appellant was convicted by the jury and sentenced to the maximum statutory sentences for aggravated burglary, abduction, gross sexual imposition, felonious sexual penetration, attempted rape, and rape. It is from this conviction and sentence that appellant, Eric Pearson, asserts four assignments of error. In addition, the state has filed a cross-appeal and asserts two assignments of error for our review.

I

In his first assignment of error, appellant argues that the court abused its discretion when it overruled his motion for a change of venue. Three months prior to this trial, appellant was tried and convicted for the rape of Schwab in the Seneca County Common Pleas Court. Appellant contends that the publicity surrounding this previous trial substantially interfered with his right to a fair and impartial jury and therefore entitled him to a change of venue.

In State v. Gumm (1995), 73 Ohio St.3d 413, 430, 653 N.E.2d 253, 269, the Ohio Supreme Court wrote:

"In reviewing this contention we are guided by established principles that the decision on changing venue rests largely in the discretion of the trial court. State v. Fox (1994), 69 Ohio St.3d 183, 189, 631 N.E.2d 124, 129-130. Absent a clear showing of an abuse of discretion, the trial court's decision controls. 'The interests of judicial economy, convenience, and reduction of...